EXHIBIT 10.21
MARKETING ALLIANCE AGREEMENT
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MARKETING ALLIANCE AGREEMENT dated as of ______________ among CANADIAN
IMPERIAL BANK OF COMMERCE, a bank formed under the laws of Canada (the "Bank"),
and NATIONAL DATA PAYMENT SYSTEMS, INC., a New York corporation ("NDPS") and
Global Payments Inc. ("Global Payments") as the guarantor of NDPS' obligations
hereunder, as described on the last page of this Agreement.
WHEREAS, the Bank and NDPS entered into an Asset Purchase Agreement dated
_________________ (the "Asset Purchase Agreement"), pursuant to which the Bank
agreed to sell to NDPS or an Affiliate of NDPS, the Assets Sold (as defined
therein);
WHEREAS, the parties have each agreed to undertake or cause to be
undertaken certain activities with respect to the Merchant Business;
WHEREAS, it was a condition to the consummation of the transactions
provided for in the Asset Purchase Agreement that the Bank and NDPS enter into
this Marketing Alliance Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants contained herein, the Bank and NDPS agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
SECTION 1.1 Certain Defined Terms. For purposes of this Agreement, the
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following terms shall have the following meanings:
"Account Fees" has the meaning set forth in Section 5.2.
"Advisors" means, with respect to a Person, the Person's employees, agents,
professional advisors and consultants and "Advisor" means any one of them.
"Affiliates" means, with respect to the Person specified, a Person that
Controls or is Controlled by, or is under common Control with, the Person
specified.
"Arbitration" has the meaning set forth in Section 22.5.
"Arbitration Act" has the meaning set forth in Section 22.5.
"Asset Purchase Agreement" has the meaning set forth in the Recitals.
"Assigned Merchant Agreements" means the Existing Merchant Agreements (but
not the Excluded Merchant Agreements).
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"Association Rules" means the rules and regulations established from time
to time by a Credit Card Association or Network Organization.
"Bank Data" means all data and information, including, but not limited to,
personal information, account balance information, facts, records, business data
tapes and documents, relating to the Bank's businesses (other than the Merchant
Business or information which has otherwise been disclosed by a Merchant or a
customer to NDPS directly or is available in the public domain).
"Bank Default" has the meaning set forth in Section 14.2.
"Bank Marks" means the Bank's trade name and trade-marks specifically
identified in the Trademark Licence Agreement.
"Bank Service Location" means any location where the Bank performs Bank
Services.
"Bank Services" means the services to be provided by, and all other
obligations of, the Bank expressly provided for in this Agreement in fulfilment
of obligations under the Merchant Agreements, including the Transition Services
for so long as, and to the extent that, they are provided under the Transition
Agreement.
"BIN" means a Bank Identification Number used in connection with Credit
Card Transactions, as described in greater detail in the applicable Association
Rules.
"BIN Reporting" has the meaning set forth in Section 8.2.
"Business Day" means any day excluding Saturday, Sunday and any day on
which banking institutions located in Toronto, Ontario, St. Louis, Missouri or
Atlanta, Georgia are authorized by law or other governmental action to be
closed.
"Business Recovery Plans" means, as the case may be, NDPS' business
recovery procedures with respect to the Merchant Business currently in the form
attached hereto as Schedule 12.1, as updated and modified from time to time in
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accordance with the terms of this Agreement, and the Bank's business recovery
procedures with respect to the Bank Services, as updated and modified from time
to time in accordance with the terms of this Agreement.
"Canadian Financial Institution" has the meaning set forth in the Asset
Purchase Agreement.
"Card Transactions" means Credit Card Transactions and Debit Card
Transactions.
"Chair" has the meaning ascribed thereto in Section 22.5.
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"Chargeback" has the meaning, with respect to VISA, specified in the VISA
Rules and, with respect to any other Credit Card Association or Network
Organization, has the meaning given to the equivalent term under the applicable
Association Rules.
"CIBC System" has the meaning set forth in Section 10.5.
"Clearing System Rules" means, for a Clearing System, the rules and
regulations established from time to time relating to the use and operation of
the Clearing System.
"Clearing System" means the relevant payment system, such as the Canadian
Payments Association, used to effect payments for Card Transactions.
"Client Relations Representative" has the meaning set forth in Section
15.1.
"Commercially Reasonable Efforts" means the efforts that a prudent person
who desires to complete a transaction or other action would use in similar
circumstances to ensure that a closing or other result occurs as expeditiously
as possible without the necessity of assuming any material obligations or paying
any material amounts to an unrelated third party.
"Control" exists when a Person owns beneficially, directly or indirectly,
more than 50% of another Person's outstanding voting securities or where a
Person has the ability to elect a majority of the directors of another Person;
"Credit Card" means a credit card or Off-Line Debit Card bearing the symbol
of a Credit Card Association which is accepted by a Merchant pursuant to the
terms of a Merchant Agreement, and in respect of which Credit Card Transactions
are cleared and settled through the Credit Card Interchange System.
"Credit Card Associations" means VISA U.S.A., Inc., VISA Canada Inc., the
Canadian MasterCard entity, if any, MasterCard USA, Inc., Visa International,
Inc., MasterCard International, Inc. or any other association that the parties
may agree upon from time to time and any successor organization or association
of any of them.
"Credit Card Clearing Date" means the date the Credit Card Association
receives the information relating to a Card Transaction from NDPS or its
Merchant Accounting Processor.
"Credit Card Interchange System" means a system of clearing and settling
Credit Card Transactions established by a Credit Card Association.
"Credit Card Transaction" means an electronic or documentary transaction
involving a Merchant pursuant to which the method of payment is by Credit Card.
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"Credit Card Transaction Records" means the electronic or documentary files
relating to Credit Card Transactions.
"Credit Facility" has the meaning set forth in the Asset Purchase
Agreement.
"Credit Loss" means a loss resulting from the failure by a Merchant to pay
amounts owed by it under a Merchant Agreement, other than amounts owed by reason
of a Chargeback.
"Debit Card" means an on-line debit card, bearing the symbol of a Network
Organization, which is accepted by a Merchant pursuant to the terms of a
Merchant Agreement and in respect of which Debit Card Transactions are cleared
and settled through the Bank in accordance with the procedures established by
the applicable Network Organization.
"Debit Card Transaction" means an electronic transaction involving a
Merchant pursuant to which the method of payment is by Debit Card.
"Debt Card Transaction Records" means the electronic or documentary files
relating to a Debit Card Transaction.
"Dispute" has the meaning set forth in Section 22.1.
"EFT" means an electronic funds transfer.
"Emergency" has the meaning set forth in Section 2.7.
"Excluded Merchant Agreements" has the meaning given to such term in the
Asset Purchase Agreement.
"Existing Merchant Agreement" means an agreement, whether oral or written,
dated before the date of this agreement and in effect on the date hereof between
the Bank and a merchant pursuant to which the Merchant undertakes to honour
Cards, to deposit Card Transaction records with the Bank and to settle with the
Bank for Card Transactions with the Bank and the Bank agrees to provide such
other related services as may be set forth in such agreement and a merchant
member agreement, an instant payment service agreement, a terminal authorization
and draft deposit service agreement, an instant payment merchant agreement, a
guaranteed reservation service agreement, a merchant tape deposit service
agreement, a telephone and mail order agreement, a merchant agreement acceptance
form, and applications for merchant service.
"Force Majeure Event" has the meaning set forth in Section 12.2.
"Foreign Interchange Amount" has the meaning set forth in Section 7.3(a).
"Foreign Interchange Notice" has the meaning set forth in Section 7.3(c).
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"Foreign Transactions" has the meaning set forth in Section 7.3(a).
"Governmental Entity" means (i) any multinational, federal, provincial,
state, municipal, local or other governmental or public department, central
bank, court, commission, board, bureau, agency or instrumentality, whether
domestic or foreign (ii) any subdivision or authority of any of the foregoing,
or (iii) any quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of the above.
"ICA" means the identification or account number used by a member of a
Credit Card Association in connection with certain Credit Card Transactions, as
described in greater detail in the applicable Association Rules.
"Indemnitee" has the meaning set forth in Section 20.1.
"Indemnitor" has the meaning set forth in Section 20.1.
"Independent Sales Organization" means a non-Affiliated sales organization
that may refer merchants to NDPS in connection with the Merchant Business.
"Interac" means Interac Association.
"Interchange Fee" means a fee payable to the applicable Credit Card
Association (part of which is payable to the applicable Credit Card issuer) in
respect of a Credit Card Transaction.
"Initiating Party" has the meaning set forth in Section 22.2.
"Issuing Account" means an account maintained by the Bank for the purposes
of clearing Credit Card Transactions in respect of which the cardholder making
the transaction uses a Credit Card issued by the Bank and the Merchant maintains
a Merchant Depository Account at the Bank.
"Joint Director Committee" means a committee comprised of two directors of
Global Payments nominated by the Bank (or if the Bank has not nominated two
directors, then the members of the Bank on the Committee shall be the remaining
director if any, of Global Payments, and an officer or officers of the Bank
designated by the Bank) and two directors of Global Payments Inc. designated by
NDPS.
"Key Accounts" has the meaning set forth in Section 2.7.
"Key Account Notice" has the meaning set forth in Section 2.7.
"Laws" means all applicable laws including all statutes, codes, ordinances,
decrees, rules, regulations, municipal by-laws, judicial or arbitral or
administrative or ministerial or
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departmental or regulatory judgments, orders, decisions, ruling or awards,
guidelines, standards, policies and procedures enacted by a regulatory body or
pursuant to statutory authority or requirement and general principles of common
and civil law and equity, binding on the Person referred to in the context in
which the word is used.
"Legal Change" has the meaning set forth is Section 9.2.
"Losses" has the meaning set forth in Section 20.1.
"MasterCard" means, as applicable, the Canadian MasterCard entity, if any,
MasterCard International, Inc., MasterCard USA, Inc. and their respective
successor organizations.
"MasterCard Card" means a Credit Card bearing the symbol of MasterCard,
Credit Card Transactions in respect of which are cleared and settled through the
MasterCard Credit Card Interchange System.
"MasterCard Rules" means the rules and regulations established by
MasterCard.
"Merchant" means any Person (other than the Bank or NDPS) that is a party
to a Merchant Agreement.
"Merchant Accounting Processor" means a processor designated by NDPS from
time to time to perform data processing relating to Credit Card Transactions.
"Merchant Agreements" means the Assigned Merchant Agreements and the New
Merchant Agreements.
"Merchant Business" has the meaning set forth in the Asset Purchase
Agreement.
"Merchant Depository Account" means a current account maintained by a
Merchant with the Bank or another financial institution for the purposes of
receiving funds in connection with Card Transactions and making payments of
amounts owing by the Merchant under the applicable Merchant Agreement.
"Merchant Processing Services" means the products and services offered as
part of the Merchant Business.
"Merchant's Edge Program" means the program between the Bank and National
Bank of Canada (or any other Canadian MasterCard issuer) in association with the
trade-mark "Merchant's Edge" under which Merchants may receive same day value
and next Business Day access to deposits for their VISA and MasterCard sales.
"NDPS Account" has the meaning set forth in Section 5.1(c).
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"NDPS Default" has the meaning set forth in Section 14.3.
"NDPS Data" shall mean all information relating to the business of NDPS and
its Affiliates including, without limitation, the Merchant Business (including,
without limitation, information regarding the identity of the Merchants as
customers of the Merchant Business, rate information, services provided to
Merchants and processing volumes) and the Assets Sold (as defined in the Asset
Purchase Agreement) (other than information which has otherwise been disclosed
by a Merchant or a customer to the Bank directly or is available in the public
domain).
"NDPS Services" means (i) all services to be provided to Merchants by, and
all other obligations of, the Bank under or in respect of the Assigned Merchant
Agreements except for the Transition Services (only for so long as and to the
extent that they are to be provided under the Transition Agreement) and except
for the Bank Services, (ii) all services to be provided by, and all other
obligations of, NDPS under the New Merchant Agreements, and (iii) the services
and obligations of NDPS expressly provided for in this Agreement.
"NDPS Service Location" means any location where NDPS performs any NDPS
Services.
"Network Organization" means the Interac Association or any legal successor
organization.
"New Merchant Agreements" has the meaning set forth in Section 2.5(a)
"Off-line Debit Card" means a payment card bearing the name of a Credit
Card Association which is settled through the Credit Card Interchange System but
the charges are debited from the cardholder's account by the issuer rather than
being billed pursuant to a monthly statement.
"Operative Documents" means, collectively, the Asset Purchase Agreement,
the Stock Purchase Agreement, this Agreement, the Transition Agreement, the
Trademark Licence Agreement, the Investor Rights Agreement, the Credit Facility
and the General Conveyance Agreement (all as referred to in the Asset Purchase
Agreement).
"Ordinary Course" means, with respect to an action taken by a Person in
respect of a business, that such action is consistent with the past practices of
the Person and is taken in the ordinary course of operations of the Person
relating to that business.
"Originate" means the transmission of a file to a Clearing System for the
purposes of effecting an EFT.
"Paper Processing Vendor" means the entity that NDPS designates to receive
documentary records relating to Card Transactions and that is responsible for
entering the relevant information concerning such transactions into an
electronic format.
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"Person" means a natural person, partnership, limited liability
partnership, corporation, joint stock company, trust, unincorporated
association, joint venture or other entity or Governmental Entity.
"Privacy Policies and Procedures" means the privacy policies and procedures
attached as Schedule 11.6, as such procedures may from time to time be modified
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by the Bank, acting reasonably.
"Reserve Account" has the meaning set forth in Section 7.1(c).
"Security Policies and Procedures" means the security policies and
procedures of NDPS set out on Schedule 10.3(a), and of the Bank set out on
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Schedule10.3(b), relating to the Merchant Business, as such policies may be
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modified from time to time in accordance with the provisions hereof.
"Service Levels" means the services levels in respect of the Services set
forth in Schedule 3.
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"Service Locations" means, collectively, the Bank Service Locations and the
NDPS Service Locations.
"Services" means, collectively, the NDPS Services and the Bank Services.
"Settlement" means the settlement of funds through a Credit Card
Interchange System or Network Organization.
"Settlement Accounts" has the meaning set forth in Section 5.1(a).
"Shortfall" means any shortfall in funds in the applicable Settlement
Account in respect of the Bank's reimbursement rights described in Sections
4.1(f) and 4.2(e).
"Statement of Dispute" has the meaning set forth in Section 22.5.
"Subsidiary" has the meaning given to such term in the Business
Corporations Act (Ontario).
"Territory" means the United States (and all of its territories) and
Canada.
"Third Party Assignee" has the means set forth in Section 2.2(b).
"Trademark Licence Agreement" means the trademark licence agreement dated
the date hereof between the Bank and NDPS.
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"Transition Agreement" means the agreement dated the date hereof between
the Bank and NDPS by which the Bank is required to provide certain services in
support of the Merchant Business during the Transition Period.
"Transition Period" has the meaning set forth in the Transition Agreement.
"VISA" means, as applicable, VISA U.S.A., Inc., VISA Canada Inc. or Visa
International, Inc. or any successor organization of any of them.
"VISA Card" means a Credit Card bearing the symbol of VISA, Credit Card
Transactions in respect of which are cleared and settled through the VISA Credit
Card Interchange System.
"VISA Rules" means the applicable rules and regulations established from
time to time by VISA.
SECTION 1.2 Headings and Table of Contents. The division of this Agreement
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into Sections, the insertion of headings and the provision of a table of
contents are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
SECTION 1.3 Number and Gender. Unless the context requires otherwise, words
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importing the singular include the plural and vice versa and words importing
gender include all genders.
SECTION 1.4 Performance on Business Days. Except as expressly provided for
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herein, if any payment is required to be made or other action is required to be
taken pursuant to this Agreement on a day which is not a Business Day, then such
payment or action shall be made or taken on the next Business Day.
SECTION 1.5 References. Any reference in this Agreement to any Law,
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Association Rule or Clearing System Rule shall, unless otherwise expressly
stated, be deemed to be a reference to such Law, Association Rule or Clearing
System Rule as amended, restated or re-enacted from time to time.
SECTION 1.6 Section and Schedule References. Unless the context requires
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otherwise, references in this Agreement to Sections or Schedules are to Sections
or Schedules of this Agreement. The Schedules to this Agreement form part of
this Agreement and are as follows:
SCHEDULES
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Schedule 2.5 - New Merchant Agreements
Schedule 2.7 - Key Accounts
Schedule 3 - Service Levels
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Schedule 7.2 - Chargebacks and Credit Losses on Certain Accounts
Schedule 10.3(a) - NDPS Security Policies and Procedures
Schedule 10.3(b) - Bank Security Policies and Procedures
Schedule 11.6 - Bank Privacy Policies and Procedures
Schedule 12.1 - Business Recovery Plans
Schedule 15 - Initial Client Relations Representatives
SECTION 2. MERCHANT AGREEMENTS
SECTION 2.1 Assigned Merchant Agreements. The parties acknowledge that
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pursuant to Section 2.1(a) of the Asset Purchase Agreement, the Bank has
effected an equitable assignment to NDPS of all of the Bank's rights under the
Assigned Merchant Agreements (it being further acknowledged that the Bank is
continuing as a party to the Assigned Merchant Agreements). Notwithstanding the
foregoing, the parties acknowledge that NDPS has the absolute right, by giving
notice to the applicable Merchants, to cause the equitable assignment described
above to be converted into a legal assignment of such rights. The parties also
confirm their intention that NDPS' covenant in Section 3.1 to provide the NDPS
Services will result in NDPS assuming and performing all of the Bank's
obligations under the Assigned Merchant Agreements (except for the Bank
Services) without affecting the Bank's contractual obligations to Merchants
pursuant to the Assigned Merchant Agreements.
SECTION 2.2 Further Assignment of Rights Under Merchant Agreements During the
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Term.
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(a) Subject to Section 2.2(b), and separate and apart from NDPS' right to
cause the equitable assignment of the Bank's rights under the Assigned
Merchant Agreements to be converted into a legal assignment of such
rights as described in Section 2.1, the Bank hereby grants to NDPS an
irrevocable right to require the Bank, during the term of this
Agreement, on notice from NDPS, to assign to NDPS or to any other
Person all but not less than all of the Bank's interest in some or all
of the Merchant Agreements in effect on the effective date of the
notice and all of the obligations of the Bank thereunder. Neither the
Bank nor NDPS makes any representation or warranty as to the legal
effect of such assignment and neither party shall have liability to
the other for any Losses incurred by the other party as a result of
the assignment, including any Losses resulting from a termination of
any Merchant Agreements by Merchants.
(b) The assignment referred to in Section 2.2(a) shall be subject to the
following conditions:
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(i) an assignee other than NDPS or an Affiliate of NDPS (a "Third
Party Assignee") shall not be permitted to use the Bank Marks
without the written consent of the Bank;
(ii) the Bank shall have the right to cause NDPS or such Third Party
Assignee to notify each affected Merchant that the Bank is no
longer a party to such Merchant Agreements and to cause NDPS or
such Third Party Assignee to convert such Merchants from the
Bank's ICA/BINs, unless NDPS has caused the Bank to assign the
ICA/BINs to such Third Party Assignee or other designee pursuant
to Section 8.3(b);
(iii) if the Bank elects to pursue its right under clause (ii), upon
the effective date of the assignment, NDPS and the Bank agree
that, (A) as between the Bank and such Third Party Assignee, the
Bank shall have no further obligations or liabilities in respect
of the Merchant Agreements (including to provide any Bank
Services) and (B) NDPS or such Third Party Assignee and NDPS
shall be deemed to have assumed and agreed thereafter to pay and
discharge when due, and to indemnify and hold the Bank harmless
with respect to, all such obligations and liabilities except for
any obligations and liabilities of the Bank that relate to
events (including sales transactions) occurring up to the
effective time of such assignment or arising out of claims
against the Bank by any party other than NDPS, any Affiliate of
NDPS or any Third Party Assignee, who challenges the legal
validity of any such assignment.
SECTION 2.3 Further Assignment of Rights Under Assigned Merchant Agreements
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Upon the Expiry of the Term.
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(a) Subject to Section 2.3(c), upon the expiry or termination of this
Agreement, the Bank shall be deemed to have assigned to NDPS, and NDPS
shall be deemed to have assumed, without any further action required
by either of them, all but not less than all of the Bank's continuing
interest (including all of the Bank's obligations and liabilities) in
the Assigned Merchant Agreements in effect on the expiry or
termination date.
(b) Neither the Bank nor NDPS makes any representation or warranty as to
the legal effect of an assignment under Section 2.3(a) and neither
party shall have liability to the other for any Losses incurred by the
other party as a result of the assignment, including any Losses
resulting from a termination of any Merchant Agreements by Merchants.
(c) Upon the effective date of the assignment, as between the Bank and
NDPS, (i) the Bank shall have no further obligations or liabilities
in
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respect of the Merchant Agreements (including to provide any Bank
Services), (ii) NDPS shall notify each Merchant that the Bank is no
longer a party to the Merchant Agreements, and NDPS shall be deemed to
have assumed and agreed thereafter to pay and discharge when due, and
to hold the Bank harmless with respect to, all such obligations and
liabilities except for any obligations and liabilities of the Bank
that relate to events (including sales transactions) occurring up to
the effective time of such assignment or arising out of claims against
the Bank by any Person (other than NDPS ) who challenges the legal
validity of any such assignment.
SECTION 2.4 Termination, Modification of Assigned Merchant Agreements. Subject
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to the provisions of Section 2.7 with respect to the Key Accounts, NDPS shall
have the right to require the Bank to terminate or modify any of the Assigned
Merchant Agreements (including but not limited to the increase of fees or
discounts charged to Merchants) to the extent permissible thereunder in a manner
consistent with the Ordinary Course of NDPS' business, provided that no
modification to an Assigned Merchant Agreement may be effected without the prior
written consent of the Bank if the modification would reasonably be expected to
materially adversely affect the Bank's obligations thereunder (which are not
being performed or assumed by NDPS), or risks or costs arising therefrom,
including with respect to Transition Services or Bank Services. Subject to the
provisions of Section 2.7, NDPS has the right to compel the Bank to be a party
of legal proceedings involving merchants under Assigned Merchant Agreements.
SECTION 2.5 New Three Party Merchant Agreements.
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(a) The parties agree to use their Commercially Reasonable Efforts to
attempt to enter into new written agreements with Merchants (to
replace any Assigned Merchant Agreement) substantially in the form
attached as Schedule 2.5 pursuant to which each of NDPS and the Bank
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shall be contracting parties with Merchants and shall be jointly and
severally obligated to perform the services thereunder (the "New
Merchant Agreements") within (i) three years from the date hereof as
to Merchants listed on Schedule 7.2, and (ii) five years from the date
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hereof as to Merchants other than those listed on Schedule 7.2.
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Notwithstanding the form of Schedule 2.5, NDPS agrees to act
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diligently and in a commercially reasonable manner in negotiating a
New Merchant Agreement with the Merchants listed on Schedule 7.2. The
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parties acknowledge that, as to Merchants other than those Merchants
listed on Schedule 7.2, NDPS shall be deemed to have used Commercially
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Reasonable Efforts if it mails a new form of agreement to such
Merchants without regard to the effectiveness of such actions. In
addition, all Merchant Agreements for new Merchants from and after the
Closing shall be substantially in the form of the New Merchant
Agreements. The parties agree that services under New Merchant
Agreements shall be performed for Merchants in accordance with the
provisions of this Agreement, namely, the Bank shall perform the Bank
Services and NDPS shall perform the NDPS Services. The parties agree
that the process of converting to New Merchant
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Agreements from the Assigned Merchant Agreements shall commence with
the Merchants listed on Schedule 7.2.
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(b) If NDPS desires the Bank to assign any rights it may have under any of
the Merchant Agreements by virtue of the fact that the Bank remains a
party to such contracts solely to comply with the Association Rules
(if applicable), the Bank shall enter into an assignment agreement
with an assignee designated by NDPS within a reasonable time after
request whereby such assignee shall assume all of the Bank's
obligations and liabilities under such Merchant Agreements as to
transactions with a Credit Card Clearing Date occurring after the
effective date of such assignment.
SECTION 2.6 Power of Attorney. The Bank hereby grants NDPS a continuing power
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of attorney to execute New Merchant Agreements from time to time on behalf of
the Bank provided such New Merchant Agreements are substantially in the form of
the agreement attached as Schedule 2.5, as amended by NDPS from time to time
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with the prior written approval of the Bank, such approval not to be
unreasonably withheld.
SECTION 2.7 Key Accounts. Attached hereto as Schedule 2.7 is a list of
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Merchants that the parties acknowledge are significant relationship customers of
the Bank (the "Key Accounts"). If NDPS desires to cause a Merchant Agreement
that relates to a Key Account to be terminated or modified in a material respect
or to commence or threaten legal proceedings against a Key Account, NDPS shall
first give notice to the Bank's Client Relations Representative of its intention
to do so (a "Key Account Notice"), which notice shall include a description of
NDPS' proposed course of action and the reasons therefor. A Key Account Notice
indicating that NDPS desires either to terminate a Key Account because it
reasonably believes that a continuation of the Merchant Agreement may result in
losses to NDPS as a result of uncollected Chargebacks or Credit Losses or that
NDPS intends to seek injunctive relief against the Key Account shall be
considered an "Emergency". The Bank must respond to an Emergency on the same
Business Day as the Key Account Notice is delivered, if the Key Account Notice
is delivered by 12:00 p.m., or the next Business Day, if delivered after 12:00
p.m. If the Key Account Notice does not relate to an Emergency, the Bank shall
have five (5) Business Days after delivery of the Key Account Notice to respond.
If the Bank responds to NDPS within the applicable response time that it wishes
to become involved in the proposed action involving a Key Account with a view to
avoiding or preventing the proposed termination or legal proceeding or otherwise
addressing the issues set forth in the Key Account Notice, or the Bank and NDPS
shall negotiate in good faith to ensure that a mutually agreeable solution is
reached as soon as reasonably possible. In the event that (i) the Bank does not
respond to the Key Account Notice within the applicable response time, or (ii)
the parties are unable to agree upon a solution (A) on the same Business Day, in
the case of an Emergency (or the next Business Day, if the Key Account Notice is
delivered after 12:00 p.m.), or (B) within five (5) Business Days after the Bank
has responded to any other Key Account Notice, NDPS shall be permitted to
proceed with the course of action proposed in the Key Account Notice.
Notwithstanding the provisions of this Section 2.7, NDPS agrees that it shall
not cause a Merchant Agreement
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in respect of a Key Account to be modified in respect of fees charged to such
Merchants for a period of six months from the date of this Agreement.
SECTION 3. SERVICES
SECTION 3.1 NDPS Services. During the term of this Agreement NDPS shall
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furnish the NDPS Services in respect of all Merchant Agreements and shall use
its Commercially Reasonable Efforts to meet the applicable Service Levels.
SECTION 3.2 Bank Services. During the term of this Agreement the Bank shall
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furnish the Bank Services in respect of all Merchant Agreements and shall use
its Commercially Reasonable Efforts to meet the applicable Service Levels.
SECTION 3.3 Licences and Permits. Each party shall be responsible for
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ensuring compliance with all applicable Laws, Association Rules and Clearing
System Rules, including any service levels established thereunder, and obtaining
and complying with the terms and conditions of all licences and permits required
by Law, Association Rules and Clearing System Rules with respect to the Services
to be performed by it or by third parties on its behalf and shall pay all fees,
costs and expenses and assume all other obligations associated therewith. NDPS
shall be responsible for and shall pay all fines and penalties arising from non-
compliance by NDPS with any Merchant Agreement, Laws, Association Rules or
Clearing System Rules or third party requirements in respect of its delivery of
the NDPS Services. NDPS shall not be responsible for any licences, memberships,
sponsorships or permits required to be obtained and/or maintained by the Bank or
for any related fees required or incurred in connection with the performance by
the Bank of the Bank Services for greater certainty, the Bank shall pay all
assessment and membership fees of VISA. The Bank shall be responsible for and
shall pay all fines and penalties arising from non-compliance by the Bank with
any Merchant Agreement, Laws, Association Rules or Clearing System Rules or
third party requirements in respect of its delivery of the Bank Services. The
parties acknowledge that the Bank shall not be responsible for any licences or
permits or related fees required to be obtained and/or maintained by NDPS.
SECTION 4. DEPOSIT AND SETTLEMENT PROCEDURES
SECTION 4.1 Acceptance, Delivery, and Settlement of Credit Card Transaction
---------------------------------------------------------------
Records.
- -------
(a) NDPS shall accept Credit Card Transaction Records from Merchants in
electronic form and shall transmit to the Bank in the Ordinary Course
of NDPS' business summary information of the amounts to be posted to
the accounts of those Merchants whose Merchant Depository Accounts are
maintained with the Bank and the amounts to be included on the file to
be sent through the applicable Clearing System with respect to those
Merchants whose Merchant Depository Accounts are maintained with other
financial institutions.
14
(b) The Bank shall accept Credit Card Transaction Records from Merchants
in documentary form at branches of the Bank and shall cause such
transactions to be sent to the Paper Processing Vendor in the Ordinary
Course of the Bank's business. NDPS shall use Commercially Reasonable
Efforts to ensure that, once the Paper Processing Vendor has entered
the relevant information from the Credit Card Transaction Records in
documentary form into an electronic format, the Paper Processing
Vendor transmits such transaction records to NDPS, and such records
shall be Processed by NDPS in the Ordinary Course of NDPS' business.
(c) For the duration of the Transition Period, for transactions which are
made by cardholders who have been issued Credit Cards by the Seller
the Bank shall credit funds from the Issuing Account (rather than the
applicable Settlement Account) to the applicable Merchant Depository
Accounts maintained at the Bank by Merchants in respect of Credit Card
Transactions in the Ordinary Course of the Bank's business and such
transactions shall not be processed through the Credit Card
Interchange System. NDPS agrees to pay the Bank any out-of-pocket
costs incurred by the Bank as a result of the processing of Credit
Card Transactions pursuant to this Section 4.1(c). The Bank shall
ensure that the Issuing Account has adequate funds each day to settle
the aforementioned "on us" transactions processed that same day.
(d) Except as provided in Section 4.1(c), the Bank shall credit funds from
the applicable Settlement Account or as otherwise provided by NDPS
pursuant to the Credit Facility to the Merchant Depository Accounts
maintained with it by Merchants in respect of Credit Card Transactions
in the Ordinary Course of the Bank's business.
(e) Upon the receipt of the information described in Section 4.1(a), the
Bank shall, in the Ordinary Course of the Bank's business, Originate
and transmit to the applicable Clearing System a file specifying the
amounts of funds from the applicable Settlement Account or as
otherwise provided by NDPS pursuant to the Credit Facility to be
credited to Merchants whose Merchant Depository Accounts are
maintained with other financial institutions. If permitted by the
applicable Laws, Association Rules and Clearing System Rules, and upon
the request of NDPS, the Bank shall use Commercially Reasonable
Efforts to offer NDPS all reasonable assistance to enable NDPS to
itself Originate Card Transactions and perform EFT through the
applicable Clearing System, including but not limited to, serving as
the Originating financial institution for such transactions. In such
event, NDPS agrees to comply with all applicable Laws, Association
Rules and Clearing System Rules.
(f) The parties acknowledge that, from time to time, there may be
insufficient funds in the applicable Settlement Account to allow the
Bank to credit Merchants' accounts pursuant to Sections 4.1(d) and
(e). In such event,
15
the amount of the Shortfall shall be deemed as having been drawn down
by NDPS on the date of the Shortfall under the terms of the Credit
Facility.
SECTION 4.2 Acceptance, Delivery, and Settlement of Debit Card Transaction
---------------------------------------------------------------
Records.
- -------
(a) NDPS shall accept Debit Card Transaction Records from Merchants in
electronic form and shall process and transmit to the Bank in the
Ordinary Course of NDPS' business summary information in the form
customarily used or required by the applicable Network Organization
including information as to the amounts to be posted to the accounts
of those Merchants whose Merchant Depositary Accounts are maintained
with the Bank.
(b) The Bank shall credit funds from the applicable Settlement Account, or
as otherwise provided by NDPS pursuant to the Credit Facility, to the
Merchant Depository Accounts maintained with it by Merchants in
respect of Debit Card Transactions in the Ordinary Course of the
Bank's business.
(c) Upon the receipt of the information described in Section 4.2(a), and
at the request of NDPS, the Bank shall Originate and transmit a file
to the applicable Clearing System to enable a reconciliation of the
amounts of funds from the applicable Settlement Account or as
otherwise provided by NDPS pursuant to the Credit Facility to be
credited to Merchants whose Merchant Depository Accounts are
maintained with other financial institutions. If permitted by
applicable Laws, Association Rules and Clearing System Rules, and upon
the request of NDPS, the Bank shall use Commercially Reasonable
Efforts to offer NDPS all reasonable assistance to enable NDPS to
itself Originate Card Transactions and to perform EFT through the
applicable Clearing System, including without limitation, serving as
the Originating financial institution for such transactions. In such
event, NDPS agrees to comply with all applicable Laws, Association
Rules and Clearing System Rules.
(d) The Bank shall accept the Debit Card Transaction Records referred to
in paragraph (a) for Settlement in the Ordinary Course of the Bank's
business as the "Settlement Agent", as such term is defined in the
Interac rules, and upon the request of NDPS, shall serve as the
"Direct Connector", as such term is defined in the Interac rules.
(e) The parties acknowledge that, from time to time, there may be
insufficient funds in the applicable Settlement Account to allow the
Bank to credit Merchants' accounts pursuant to Section 4.2(b). In such
event, the amount of the Shortfall shall be deemed as having been
drawn by NDPS on the date of the Shortfall under the terms of the
Credit Facility or, if a
16
drawdown cannot occur, then such amount shall be repaid to the Bank by
NDPS promptly upon receipt of notice thereof.
SECTION 4.3 Acceptance, Delivery and Settlement of Merchant's Edge Card
-----------------------------------------------------------
Transactions.
- ------------
(a) NDPS shall accept MasterCard and American Express Card Transaction
Records in electronic form from Merchants participating in the
Merchant's Edge Program and shall transmit to the Bank in the Ordinary
Course of NDPS' business summary information of the amounts to be
posted to the accounts of those Merchants whose Merchant Depository
Accounts are maintained with the Bank and shall transmit to either
American Express or National Bank, as applicable, the transaction
information necessary for it to settle the transactions.
(b) The Bank agrees to credit funds from the applicable Settlement Account
or as otherwise provided by NDPS pursuant to the Credit Facility to
the Merchant Depository Accounts maintained with it by Merchants in
the Ordinary Course of the Bank's business.
(c) The Bank shall transfer funds from the applicable current account
maintained by either National Bank or American Express at the Bank to
the applicable Settlement Account in connection with the funds
credited pursuant to Section 4.3(b).
(d) In addition to the foregoing, the parties agree to comply with the
agreement between NDPS, the Bank and National Bank of Canada and the
agreement between NDPS, the Bank and American Express to be entered
into with relevant Merchants in respect of the Merchant's Edge
Program.
SECTION 4.4 Amendments. The parties acknowledge that the procedures set out in
----------
Section 4 may be amended by NDPS from time to time provided that such amended
procedures are in accordance with applicable Laws, Association Rules and
Clearing System Rules and the Merchant Agreements and provided further that (i)
the Service Levels set out in Schedule 3 are maintained in all material respects
----------
(subject to amendment of such Service Levels in accordance with the provisions
of this Agreement) and (ii) there is no material adverse impact on the Bank's
cost of providing Bank Services or Transition Services.
SECTION 5. PAYMENTS AND ACCOUNTS; CLEARING ARRANGEMENTS
SECTION 5.1 General.
-------
(a) The Bank shall maintain internal, segregated settlement accounts (the
"Settlement Accounts"), the sole purpose of which shall be for the
Bank to receive funds from the Credit Card Interchange Systems and
Network Organizations, as the case may be, in connection with the
Merchant
17
Business. The Bank shall make the appropriate arrangements and grant
any necessary consents required from the Bank in order to permit NDPS
to determine the current balance of each Settlement Account at any
time and by the means best able to provide NDPS with the most current
balance available, including, without limitation and if available, by
direct electronic review by NDPS.
(b) The Bank shall provide NDPS a monthly statement of withdrawals and
deposits for each Settlement Account.
(c) The Bank shall on each Business Day after the transfers referred to in
Sections 4.1(d), 4.2(b) and 4.3(b) have been effected, pay any
remaining amounts in the Settlement Accounts to an account designated
by NDPS (the "NDPS Account").
(d) The parties agree that, without the express written consent of both
the Bank and NDPS, neither NDPS nor the Bank shall, except as provided
herein, be entitled to, or to make any withdrawals or take any other
action with respect to, the Settlement Accounts.
SECTION 5.2 Withdrawal of Account Fees from Merchant Depository Accounts. On a
------------------------------------------------------------
monthly basis, or more frequently as determined by NDPS, NDPS shall direct the
Bank to withdraw funds from each Merchant Depository Account maintained with the
Bank in respect of service fees owed by the related Merchant pursuant to the
applicable Merchant Agreement and to Originate and transmit to the applicable
Clearing System a file that contains the service fees owed by the Merchant whose
Merchant Depository Account is maintained with financial institutions other than
the Bank (collectively, the "Account Fees"). NDPS shall, on each Business Day,
direct the Bank to withdraw funds from each Merchant Depository Account in the
amount of any applicable Chargebacks. The Bank shall cause the Account Fees and
Chargebacks, if any, to be deposited into the NDPS Account.
SECTION 5.3 Settlement Accounts. The parties agree that the Settlement
-------------------
Accounts shall be in the name of the Bank to comply with Association Rules
concerning the use by NDPS of the Bank's BIN numbers, as set forth in this
Agreement.
SECTION 6. EXCLUSIVITY AND MARKETING
SECTION 6.1 Referral of Potential Merchants.
-------------------------------
(a) The Bank shall, and shall cause its Subsidiaries or any other Person
under its Control to, refer only to NDPS any Person in the Territory
who expresses interest in obtaining, referring or utilizing Merchant
Processing Services, and neither the Bank nor any of its Subsidiaries,
nor any other Person under its Control, shall solicit any such Person
on their own behalf or on behalf of any Person other than NDPS for
Merchant Processing Services.
18
(b) NDPS shall pay the Bank an amount to be agreed upon from time to time
by NDPS and the Bank, acting reasonably, for each merchant that enters
into a fully executed Merchant Agreement and that is referred to NDPS
by a branch of the Bank.
(c) If NDPS does not wish to enter into a Merchant Agreement with a
potential merchant customer referred to NDPS by the Bank, NDPS shall
notify the Bank as soon as reasonably practicable and, upon receipt of
such notice, the Bank may request that NDPS accept such merchant in
exchange for the Bank's agreement to subsidize or otherwise contribute
or provide rights of indemnity with respect to the Merchant Agreement.
If NDPS and the Bank agree upon the terms and conditions of such
agreement, NDPS shall accept such merchant subject to such
arrangement.
(d) If NDPS does not wish to enter into a Merchant Agreement with a
potential merchant customer referred to NDPS by the Bank (and the Bank
and NDPS do not agree upon the subsidy or other contribution
arrangements as described in Section 6.1(c)), or if, in the opinion of
NDPS, NDPS does not have the capability of serving the prospective
customer, NDPS may refer such prospective customer to a third party
selected by NDPS that is acceptable to the Bank, acting reasonably.
(e) In the event that the third party declines to enter into a merchant
agreement or NDPS does not refer a prospective customer to a third
party pursuant to Section 6.1(d), then NDPS shall so notify the Bank
and the Bank shall have the opportunity to refer the merchant to
another Person.
SECTION 6.2 Merchant Depository Accounts. During the term of the Agreement,
----------------------------
NDPS shall use Commercially Reasonable Efforts to encourage new merchant
customers to whom the Merchant Business is advertised or branded in association
with the Bank Marks to open Merchant Depository Accounts with the Bank. During
the term of this Agreement NDPS shall not to solicit or encourage Merchants who
maintain their Merchant Depository Accounts with the Bank to transfer such
accounts to any other financial institution.
SECTION 6.3 New Products and Services. NDPS and the Bank agree to work
-------------------------
together in the development, distribution and marketing of emerging payment
solutions.
SECTION 7. CHARGE-BACKS, CREDIT LOSSES AND RISK MANAGEMENT
SECTION 7.1 Chargebacks and Credit Losses.
-----------------------------
(a) Except as set forth in Section 7.2 and as otherwise provided in the
Asset Purchase Agreement or the Transition Agreement, NDPS shall be
responsible for, and reimburse the Bank in respect of, all unpaid
Chargebacks and Credit Losses and costs of collection, if any, with
respect to transactions with Merchants with a sales date occurring on
or after the
19
Effective Time under the Asset Purchase Agreement unless the
Chargeback or Credit Loss results from the failure by the Bank to
perform its obligations under this Agreement or the Transition
Agreement.
(b) NDPS shall process Chargebacks and Credit Losses relating to the
Merchant Agreements in an expeditious manner in the Ordinary Course of
its business.
(c) In the event NDPS, acting reasonably, deems it prudent to establish a
reserve (a "Reserve Account") for a Merchant whose Merchant Depository
Account is maintained by the Bank, the Bank shall, if and to the
extent permitted by the account agreement with the Merchant and by
applicable Law, within four (4) hours of the request by NDPS, debit
the amount of the reserve specifically requested by NDPS or place a
freeze on withdrawals by the Merchant from the Merchant Depository
Account. In the event the Merchant is a Key Account, the request from
NDPS shall be considered a Key Account Notice relating to an Emergency
and shall be dealt with in accordance with Section 2.7. The
establishment of a Reserve Account or a freeze on a Merchant
Depository Account shall not result in or constitute a waiver or
limitation of any rights of set off or other rights which the Bank may
have against a Merchant or in respect of the Merchant Depository
Accounts in connection with other obligations of any of the Merchants
to the Bank.
SECTION 7.2 Payment for Chargebacks and Credit Losses. In respect of each
-----------------------------------------
twelve month period commencing after the Effective Date, the Bank agrees to pay
NDPS the amount, if any, by which the aggregate of all unpaid Chargebacks and
Credit Losses applicable to any Merchant listed on Schedule 7.2 arising out of
------------
sales transactions occurring during such twelve month period exceeds an amount
equal to twice the value of unpaid Chargebacks and Credit Losses experienced by
the Bank and attributable to such Merchant during the one year period ending
October 31, 1999. The obligation of the Bank in the preceding sentence shall
survive until the earliest to occur of (a) three years from the Effective Date
of this Agreement and (b) the later of (i) the termination of the Transition
Period and, (ii) the date on which such Merchant has entered into a New Merchant
Agreement, and (c) the date on which NDPS assigns its interest under the
applicable Assigned Merchant Agreement to a third party other than an Affiliate.
NDPS shall notify the Bank within a reasonable time after experiencing
uncollected Chargebacks and Credit Losses in respect of any such Merchant and to
exercise its Commercially Reasonable Efforts to collect all such amounts. NDPS
shall act diligently and in a commercially reasonable manner in negotiating a
New Merchant Agreement with any of the Merchants listed on Schedule 7.2. As
------------
soon as NDPS becomes aware that it has a right to payment from the Bank under
this Section 7.2 in respect of a Merchant, it shall forthwith notify the Bank
and the Bank shall have no obligation to pay any amounts under this Section 7.2
that relate to the sales transactions with the Merchant occurring after the date
that NDPS could terminate the relevant Merchant Agreement in accordance with its
terms once the Bank has been notified of its indemnification obligation set out
in this Section 7.2 in respect of the Merchant. NDPS and the Bank agree that:
(i) some of
20
the Merchants listed on Schedule 7.2 are Merchants for whom the applicable
------------
Merchant Agreement applies to the Merchant and to business divisions or
Affiliates of the Merchant, (ii) all such divisions and Affiliates are
aggregated (together with the Merchant) for purposes of Schedule 7.2, and (iii)
------------
for each such Merchant, no claim by NDPS for payment under this Section 7.2 may
be made unless the total of all unpaid Chargebacks and Credit Losses for the
relevant one-year period referred to above exceeds twice the value of unpaid
Chargebacks and Credit Losses for the one year period ending October 31, 1999
calculated in respect of the Merchant on an aggregate basis and not on a
division-by-division or Affiliate-by-Affiliate basis.
SECTION 7.3 Foreign Interchange.
-------------------
(a) The parties acknowledge that, as part of the Merchant Business, the
Bank has acquired VISA Credit Card Transactions outside of Canada for
the payment of goods or services provided by a Merchant that is a
party to an Existing Merchant Agreement ("Foreign Transactions"). If
NDPS continues to acquire Foreign Transactions from and after the date
hereof, the Bank shall pay to NDPS in respect of each Foreign
Transaction an amount (the "Foreign Interchange Amount"), if any,
equal to the difference between:
(i) the Interchange Fee payable on the Foreign Transaction in
accordance with the applicable VISA Rules; and
(ii) an amount calculated on the same basis (but applying the
Interchange Fee in effect at the time of calculation) that the
Bank was using to calculate the Interchange Fee payable to VISA
prior to November 1, 2000 for the same Foreign Transaction,
subject to a maximum payment per Foreign Transaction equal to the
payment that would be required based on the applicable Interchange
Fees in effect on the date hereof.
(b) Any Foreign Interchange Amounts calculated from time to time to be
payable by the Bank to NDPS under Section 7.3(a) shall be paid (i)
only for the duration of the current term, excluding renewal terms, of
the applicable Existing Merchant Agreement, and (ii) only if and to
the extent the pricing provisions of the applicable Existing Merchant
Agreement cannot be amended during the current term to eliminate the
Foreign Interchange Amount.
(c) NDPS shall deliver a notice (a "Foreign Interchange Notice") to the
Bank on or after the last day of each calendar month specifying the
aggregate Foreign Interchange Amounts payable by the Bank for such
calendar month and setting forth a calculation thereof. The Bank
shall have the right to review the relevant books and records of NDPS
to confirm the accuracy of NDPS's calculation of the Foreign
Interchange
21
Amounts. The Bank shall pay the Foreign Interchange Amounts within 10
Business Days of receipt of the Foreign Interchange Notice.
(d) NDPS agrees to co-operate and render all commercially reasonable
assistance to the Bank in connection with any proceedings or
negotiations between the Bank and VISA with respect to the
interpretation and application of the VISA Association Rules to
Foreign Transactions.
(e) If, as a result of the proceedings or negotiations referred to in
paragraph (c), the Bank is successful in obtaining a reduced
Interchange Fee for Foreign Transactions and Purchaser receives a
reimbursement for Foreign Transactions in respect of which the Bank
has paid Foreign Interchange Amounts, then NDPS shall in turn pay to
the Bank the amount of the reimbursement (to a maximum equal to the
Foreign Interchange Amounts paid for such Foreign Transactions).
SECTION 8. MEMBERSHIP IN CREDIT CARD ASSOCIATIONS AND NETWORK ORGANIZATIONS
SECTION 8.1 VISA and Interac Membership by Bank. During the term of the
-----------------------------------
Agreement, the Bank shall remain a member of VISA and Interac in Canada and a
member of VISA and MasterCard in the United States through an Affiliate and to
carry out its obligations as a member thereof in the Ordinary Course.
SECTION 8.2 Compliance with VISA and Interac Requirements by NDPS.
-----------------------------------------------------
During the term of the Agreement, NDPS shall cooperate with the Bank in
connection with NDPS and/or the Bank obtaining and maintaining any approvals
from Credit Card Associations, Network Organizations and Clearing Systems as are
required in connection with the performance by NDPS of the NDPS Services. After
the date that the Bank's BINs and ICAs have been segregated as described in the
Asset Purchase Agreement, NDPS shall undertake all reporting, audit, compliance
and related procedures ("BIN Reporting") required by the applicable Association
Rules with respect to the use of BINs and ICAs in Canada and the United States,
whether such BIN Reporting is required to be done on a regular basis or on an ad
hoc basis pursuant to a request by the relevant Card Association or any
Governmental Entity. Prior to the date that the Bank's BINs and ICAs have been
segregated as described above, the Bank shall be responsible for all required
BIN Reporting.
SECTION 8.3 Processing and Clearing Arrangements.
------------------------------------
(a) The Bank shall at all times maintain distinct VISA BIN numbers
adequate for use in clearing all of the Credit Card Transactions of
NDPS' Merchant Business in Canada. The Bank shall cause a U.S.
Affiliate of the Bank to maintain distinct VISA and MasterCard BIN and
ICA numbers adequate for use in Clearing the Credit Card Transactions
of NDPS' Merchant Business in the United States, unless: (i) there is
a change in Laws or Association Rules which would adversely impact the
Bank's ability to
22
continue to provide such ICAs/BINs; or (ii) the Bank within its sole
discretion elects to terminate its banking businesses in the United
States to an extent that would make the Bank no longer eligible for an
ICA/BIN under the applicable Association Rules, and, in either case
described in (i) or (ii) above, the Bank gives NDPS 360 days' prior
written notice, unless a shorter notice period is be required under
applicable Laws. For greater certainty, the parties acknowledge that
NDPS shall have the right set out in Section 8.3(b) to cause the Bank
to assign any or all of such BINs and/or ICAs to a Person designated
by NDPS. NDPS shall reimburse the Bank for all out-of-pocket costs
payable to VISA and incurred by the Bank or any of its Affiliates in
connection with the maintenance and operation of the Canadian BINs for
NDPS' Merchant Business in Canada. NDPS shall also (i) reimburse the
Bank for all out-of-pocket costs payable to VISA and MasterCard
incurred by the Bank or any of its Affiliates in connection with the
maintenance and operation of such US ICAs/BINs, (ii) be responsible
for the cost of all funding requirements applicable to the US Merchant
Business being processed through such US ICAs/BINs, (iii) reimburse
the Bank for any increase in the costs incurred by the Bank or any of
its Affiliates that are attributable to any incremental capital
commitments or allocations that are required to be set aside by the
Bank or any of its Affiliates as a result of maintaining and operating
such US ICAs/BINs for NDPS' Merchant Business in the United States
(which costs shall be consistent with any charges or rates charged by
the Bank internally for the capital allocated by the Bank to its
divisions and other business units) and iv) be responsible for the
performance of all reporting, monitoring and other similar obligations
under applicable Laws and Association Rules, consistent with market
practice and as may be reasonably requested by the Bank from time to
time. Notwithstanding clause (iii) of the preceding sentence, the Bank
shall first be required to use Commercially Reasonable Efforts to
guarantee or provide similar support in respect of the obligations of
its United States Affiliate whose BINs and ICAs will be maintained and
operated in satisfaction of the Bank's obligations under this Section
8.3(a), if the Bank is permitted or required to do so by applicable
Laws and Association Rules, before it shall be entitled to
reimbursement from NDPS in respect of the capital costs incurred in
connection with such US BINs and ICAs. If, at any time during the term
of this Agreement, the Bank is permitted under the applicable
Association Rules to obtain a MasterCard BIN number or an ICA number
for use in Canada, the Bank shall, upon notice from NDPS, use
Commercially Reasonable Efforts to obtain a MasterCard BIN number or
ICA number for use by NDPS in the Merchant Business in accordance with
this Agreement. If, at any time during the term of this Agreement, the
Bank is permitted under the applicable Association Rules to obtain a
BIN number or an ICA number for use in any other jurisdiction, the
Bank shall, upon notice from NDPS, use Commercially Reasonable Efforts
to obtain such BIN number or ICA number for use by NDPS in the
Merchant
23
Business in accordance with all provisions of this Agreement.
Notwithstanding the provisions of this Section 8.3, if, during the
term of this Agreement, there is a change of Control of NDPS or Global
Payments, the parties shall negotiate in good faith with a view to
settling the commercial terms upon which NDPS shall be permitted to
continue to use the Bank's BINs and ICAs in connection with the
Merchant Business. In the event that the parties are unable to reach
agreement within twelve months from such change of Control, the Bank
shall have the right to terminate the use of the Bank's BINs and ICAs
by NDPS and its Affiliates upon 360 days notice, which notice can be
given at any time after such change of Control.
(b) If NDPS desires the Bank to assign any or all of the ICA and/or BIN
numbers used in connection with the Merchant Business, the Bank shall,
subject to applicable Laws and Association Rules and upon reasonable
notice from NDPS, enter into an assignment agreement, in a form
acceptable to the Bank acting reasonably, with an assignee designated
by NDPS within a reasonable time after receipt of such notice, whereby
such assignee shall assume all of the Bank's obligations and
liabilities under the Bank's agreement with the Credit Card
Association issuing the ICA and/or BIN numbers as to transactions with
a Credit Card Clearing Date occurring after the effective date of such
assignment. Prior to the effective date of the assignment, the parties
shall in good faith determine the amendments, if any, that are
required to this Agreement as a result of the assignment.
(c) Subject to the terms of applicable Association Rules, NDPS may from
time to time request that the Bank become the assignee of any ICA or
BIN number that NDPS is then using for processing transactions and/or
to become a party to the underlying merchant agreements whose Credit
Card volumes are being processed under such ICA/BIN. Upon the request
of NDPS, the Bank shall enter into an assignment agreement, in a form
acceptable to the Bank acting reasonably, in respect of such numbers
from the then current owner of such ICA/BIN number and/or agree to
become a party to the underlying merchant agreements whose Credit Card
Transactions are being processed under such numbers it being agreed
that the Bank shall have no liabilities or obligations under the
assigned merchant agreements other or in respect of such assigned BINs
or ICAs to comply with applicable Association Rules. Any such
assignment shall be effective only as to transactions with a Credit
Card Clearing Date occurring after the effective date of such
assignment. Upon the assignment becoming effective, the assigned
merchant agreements shall be considered to be New Merchant Agreements
for purposes of this Agreement.
SECTION 8.4 Sponsorship. Upon the request of NDPS, and subject to the
------------
applicable Association Rules, the Bank agrees to use its Commercially Reasonable
Efforts to
24
sponsor NDPS and any of its Affiliates and any of the Independent Sales
Organizations NDPS utilizes in connection with the Merchant Business as required
by the Credit Card Associations and Network Organizations, provided that NDPS
shall reimburse the Bank in respect of any out-of-pocket costs incurred by the
Bank in respect of such sponsorship.
SECTION 9. SERVICE LEVELS AND AMENDMENTS
SECTION 9.1 Complaints. NDPS shall implement customer complaint policies and
----------
procedures consistent with the Ordinary Course of its business to deal with
complaints concerning the NDPS Services.
SECTION 9.2 Changes in Law. etc. The parties shall identify and assess the
--------------------
impact on the Services of a change in applicable Laws, Association Rules or
Clearing System Rules that relate to the Services (a "Legal Change"). If NDPS
or the Bank becomes aware of an impending or actual Legal Change, it shall
notify the other of such Legal Change and provide an assessment of its impact.
The parties shall in good faith attempt to agree upon any required modifications
to the Services required as a result of a Legal Change. While a party is making
any agreed upon modifications resulting from a Legal Change, it shall use
Commercially Reasonable Efforts to continue to provide the Services to be
provided by it at the specified Service Levels. If, however, such Legal Change
prevents the party from meeting the Service Levels, the party shall use its
Commercially Reasonable Efforts to arrange a reasonable solution which gives
effect to the intent of this Agreement as closely as practicable and that
delivers Service in the most commercially reasonable manner in the
circumstances. If such Legal Change materially affects a party's cost of
providing Services, NDPS and the Bank shall in good faith negotiate an
adjustment of the applicable Service Levels in accordance with Section 9.3.
SECTION 9.3 Problem Notification. The Bank or NDPS, shall notify the other
--------------------
party in the event either the Bank or NDPS as the case may be becomes aware of
an event, occurrence, error, defect or malfunction materially affecting the
ability of NDPS or the Bank to perform the Services. Failure by any party to
give any notice pursuant to this Section 9.3 relating to a problem relating to
the other party shall not relieve the other party of any liability hereunder. If
more than one problem arises or occurs at one time, the parties shall mutually
agree upon the order of priority in which the problems are to be addressed and
resolved.
SECTION 9.4 Root-Cause Analysis and Resolution. Each of NDPS and the Bank
----------------------------------
shall, promptly after:
(a) any material failure of either party to provide any of the Services in
accordance with this Agreement; or
(b) a party's repeated failure to provide any of the Services in
accordance with this Agreement;
and in any event within three (3) days of receipt of a notice from a party to
the other in respect thereof, commence an analysis to identify the cause of such
failure; and as soon
25
as commercially reasonable thereafter provide a report detailing the cause of,
and procedure for correcting, such failure. In addition, the party responsible
for the provision of the Service shall deliver to the other party within a
commercially reasonable time a corrective action plan that addresses actions to
be taken in an effort to try to avoid a recurrence of such failure.
SECTION 10. SERVICE LOCATIONS AND SECURITY
SECTION 10.1 Rights of Access to NDPS Service Locations. Subject to the
------------------------------------------
confidentiality requirements in this Agreement or as otherwise agreed to by NDPS
and the Bank, the Bank and its Advisors shall be permitted access to any NDPS
Service Location during the normal operating hours for such NDPS Service
Location and in accordance with any reasonable security procedures in effect at
the time of such access; provided, however, that the Bank and its Advisors
shall, except in emergency situations, make reasonable accommodation for the
need of NDPS to run its business unimpeded, particularly at busy times of the
year.
SECTION 10.2 NDPS Service Locations. NDPS agrees that it shall not provide any
----------------------
of the NDPS Services from a location outside of Canada or the United States
without obtaining all required approvals from applicable Governmental Entities.
SECTION 10.3 Security Procedures. As part of the NDPS Services, NDPS shall
-------------------
implement, maintain and enforce the NDPS Security Policies and Procedures. As
part of the Bank Services, the Bank shall implement, maintain and enforce the
Bank Security Policies and Procedures.
SECTION 10.4 Unauthorized Access or Copying. The Bank shall be given prompt
------------------------------
notice following NDPS becoming aware of any unauthorized copying of, or access
to, the Bank Data, or any part thereof, such notice to be in the form of a
reasonably detailed incident report.
SECTION 10.5 Data Security. To the extent that NDPS has, pursuant to this
-------------
Agreement, the right to gain access to or use any computer system operated by
the Bank or by an Affiliate of the Bank (a "CIBC System"), NDPS acknowledges,
agrees and covenants that:
(a) except as expressly otherwise provided in this Agreement or any of the
other Operative Documents, NDPS shall have no right or title to,
interest in or ownership of, any CIBC System or any component or
portion thereof;
(b) except as expressly otherwise provided in this Agreement or any of the
other Operative Documents, NDPS shall neither permit nor enable anyone
other than its employees or Advisors to access or use any CIBC System
or any component or portion thereof;
26
(c) except as expressly otherwise provided in this Agreement or any of the
other Operative Documents, NDPS shall not, and shall not facilitate or
assist others to, gain access to or use any CIBC System or any
component thereof;
(d) NDPS shall not, and shall not facilitate or assist others to, reverse
compile or disassemble any object code version of any software
application or program in the CIBC System;
(e) NDPS shall not make any untrue or unsubstantiated claim or
representation as to the ownership of, or act as the owner of, any
CIBC System or any component or portion thereof;
(f) NDPS shall not, and shall not facilitate or assist others to, gain
access to or attempt to gain access through any CIBC System in respect
of which NDPS has, under this Agreement or any other Operative
Agreement, a right of access, to any other CIBC System or component or
portion thereof which NDPS does not, under this Agreement or any other
Operative Agreement have the right to access; and
(g) except as may otherwise be provided in this Agreement or any of the
other Operative Documents, NDPS shall not, nor shall it facilitate or
assist others to, perform any act that is inconsistent with or in
violation of this Agreement, or that may jeopardize the rights of the
Bank, its Affiliates or any third party licensors, in the CIBC System.
SECTION 10.6 Rights of Access to Bank Service Locations.
------------------------------------------
(a) Subject to the confidentiality requirements in this Agreement or as
otherwise agreed to by the parties, NDPS and its Advisors shall be
permitted access, for purposes of the Merchant Business, to any Bank
Service Location during the normal operating hours for such Bank
Service Location and in accordance with any reasonable security
procedures in effect at the time of such access; provided, however,
that NDPS and its Advisors shall, except in emergencies, make
reasonable accommodation for the need of the Bank to run its business
unimpeded, particularly at busy times of the year.
(b) The Bank agrees to use its Commercially Reasonable Efforts to assist
NDPS and to request Intria Items Inc. and Intria-HP Corporation to
assist in the migration from the Bank's platform (the "Bank Platform")
using Intria Items Inc. and Intria-HP Corporation, on which Card
Transactions are processed, to a platform owned and operated by NDPS
or its Affiliate including, without limitation, granting reasonable
access to such Bank Platform, and disclosing such information related
to the configuration, functionality and application programming
interfaces of the Bank Platform
27
as are reasonably required by NDPS to achieve such migration;
provided, however, that such assistance, access and disclosure is
subject to:
(i) the Bank's reasonable security and privacy policies and
procedures;
(ii) any obligations of confidentiality or like restrictions imposed
upon the Bank under any agreements to which the Bank is a party.
(c) If, in connection with such migration, NDPS requests Intria Items Inc.
or Intria-HP Corporation to perform services NDPS shall pay the
reasonable costs of Intria Items Inc. or Intria-HP Corporation
incurred in connection with such assistance, access and disclosure,
provided that NDPS has agreed in advance to pay such costs.
SECTION 10.7 Unauthorized Access or Copying. The Bank shall give NDPS prompt
------------------------------
notice of the Bank becoming aware of any unauthorized copying of, or access to,
the NDPS Data, or any part thereof, such notice to be in the form of a
reasonably detailed incident report.
SECTION 10.8 Co-operation with Special Investigations. NDPS and the Bank shall
----------------------------------------
each provide reasonable co-operation and assistance to the other and their
respective Advisors with respect to any investigation of a security breach or
alleged breach at an NDPS Service Location or a Bank Service Location.
SECTION 11. REPORTS AND DATA
SECTION 11.1 NDPS Reports. As part of the NDPS Services, NDPS shall provide to
------------
the Bank such reports as the Bank and NDPS may mutually agree upon from time to
time. The reasonable costs of such reports shall be borne by the Bank except
for reports provided which are generated in the Ordinary Course of NDPS's
business without additional costs or undue burden.
SECTION 11.2 Bank Reports. As part of the Bank Services, the Bank shall provide
------------
to NDPS such reports as the Bank and NDPS may mutually agree upon from time to
time. The reasonable costs of such reporting shall be borne by NDPS except for
reports which are generated in the Ordinary Course of the Bank's business
without additional costs or undue burden.
SECTION 11.3 Ownership of the Bank Data. Notwithstanding NDPS' use of the Bank
--------------------------
Data in connection with providing the NDPS Services, the Bank Data is and shall
remain the property of the Bank or its customers, as applicable. The Bank Data
shall not be:
(a) used in any way, directly or indirectly, by NDPS or its Advisors other
than to the extent necessary in connection with the Merchant Business
and to provide the NDPS Services;
28
(b) disclosed (other than pursuant to this Agreement) sold, assigned,
leased or otherwise provided to third parties; or
(c) commercially exploited in any way, directly or indirectly, by or on
behalf of NDPS or its Advisors.
SECTION 11.4 Access to the Bank Data. Notwithstanding NDPS' use of the Bank
-----------------------
Data in connection with providing the NDPS Services, at all times during the
term of this Agreement, NDPS shall, subject to Section 10, provide the Bank with
unrestricted access to the Bank Data used in connection with the Services.
SECTION 11.5 Return of Bank Data. NDPS shall at:
-------------------
(a) the request of the Bank, at any time; and
(b) upon the termination of this Agreement;
promptly return to the Bank the Bank Data in its then current format or formats
or in such format or formats and on the media reasonably requested by the Bank
and mutually agreed upon by the parties, or such portion of it as has been
requested by the Bank. For greater certainty, the parties acknowledge that any
material costs incurred by NDPS in connection with the transfer of the Bank Data
from those existing formats or media to those requested by the Bank shall be
borne by the Bank. For greater certainty, the Bank agrees that it shall not
request a return of the Bank Data in a manner which shall cause a material
change in the Services or request a return of the Bank Data if doing so would
otherwise restrict NDPS' ability to perform the NDPS Services under this
Agreement or the conduct of the Merchant Business. Following such return, at
the Bank's written direction, and upon payment by the Bank of the costs thereof,
NDPS shall remove from its databases, erase or destroy any the Bank Data
remaining in NDPS' possession, or such portion of it as the Bank may direct.
NDPS shall be relieved of its obligations to provide those Services which
require the availability of the Bank Data which have been returned to the Bank
or destroyed by NDPS in accordance with this Section 11.
SECTION 11.6 Privacy. The parties agree to comply with all of the requirements
-------
of the Privacy Policies and Procedures in connection with the Assigned Merchant
Agreements and all applicable privacy Laws, Association Rules and Clearing
System Rules in connection with the provision of the Services.
SECTION 11.7 Ownership of NDPS Data. Notwithstanding the Bank's access to the
----------------------
NDPS Data in connection with providing the Bank Services, the NDPS Data is and
shall remain the property of NDPS or its customers, as applicable. The NDPS
Data shall not be:
(a) used, in any way, directly or indirectly, by the Bank or its Advisors
other than to the extent necessary in connection with providing the
Bank Services;
29
(b) disclosed (other than pursuant to this Agreement) sold, assigned,
leased or otherwise provided to third parties; or
(c) commercially exploited in any way, directly or indirectly, by or on
behalf of the Bank or its Advisors.
SECTION 11.8 Access to NDPS Data. Notwithstanding the Bank's potential access
-------------------
to NDPS Data in connection with providing the Bank Services, at all times during
the term of this Agreement the Bank shall, subject to Section 10, provide NDPS
with unrestricted access to NDPS Data used in connection with the Services.
SECTION 11.9 Return of NDPS Data. The Bank shall at:
-------------------
(a) the request of NDPS, at any time; and
(b) upon the termination of this Agreement;
promptly return to the Bank the Bank Data in its then current format or formats
or in such format or formats and on the media reasonably requested by NDPS and
mutually agreed upon by the parties, or such portion of it as has been requested
by NDPS. For greater certainty, the parties acknowledge that any material costs
incurred by the Bank in connection with the transfer of NDPS Data from those
existing formats or media to those requested by NDPS shall be borne by NDPS.
For greater certainty, NDPS agrees that it shall not request a return of NDPS
Data in a manner which shall cause a material change in the Services or return
the NDPS Data if doing so would otherwise materially restrict the Bank's ability
to perform the Bank Services under this Agreement. Following such return, at
NDPS' written direction, and upon payment by NDPS of the costs thereof, the Bank
shall remove from its databases, erase or destroy any NDPS Data remaining in the
Bank's possession, or such portion of it as NDPS may direct. The Bank shall be
relieved of its obligations to provide those Services which require the
availability of NDPS Data which have been returned to NDPS or destroyed by the
Bank in accordance with this Section 11.
SECTION 11.10 Data Mining. The Bank and NDPS agree to work together in good
-----------
faith to establish each party's rights to collect, use and distribute the
information contained in payment transactions having regard to
(i) all applicable Laws;
(ii) all contractual obligations of either the Bank of NDPS to any other
Persons; and
(iii) the cost of collecting or gaining access to all such information.
30
SECTION 12. BUSINESS RECOVERY
SECTION 12.1 Business Recovery Plan. NDPS and the Bank shall:
----------------------
(a) maintain their respective Business Recovery Plans in accordance with
their terms;
(b) periodically update and test the operability of their Business
Recovery Plans;
(c) provide the other party with written copies of Business Recovery Plan
promptly following any amendment;
(d) on a periodic basis, certify to the other party that the certifying
party's applicable Business Recovery Plan has been successfully
tested;
(e) implement their respective Business Recovery Plans in accordance with
the applicable terms;
(f) consult with the other party regarding the priority to be given to the
Services upon the occurrence of an event that triggers any obligation
under either party's Business Recovery Plan; and
(g) not amend their respective Business Recovery Plan that may materially
affect the Merchant Business without the prior written consent of the
other party, such consent not to be unreasonably withheld.
SECTION 12.2 Force Majeure. Neither NDPS nor the Bank shall be liable for a
-------------
failure or delay in the performance of its obligations pursuant to this
Agreement, including the failure or delay in respect of providing the Services
if, and to the extent, and only for so long as such failure or delay is caused,
directly or indirectly, by fire, flood, earthquake, elements of nature or acts
of God, acts of war, terrorism, riots, civil disorders, rebellions, strikes,
lock outs or labour or supply disruptions or revolutions or any other similar
causes beyond the reasonable control of such party (each, a "Force Majeure
Event") provided NDPS or the Bank, as the case may be, continues to use
Commercially Reasonable Efforts to recommence performance whenever and to
whatever extent possible without delay. If a Force Majeure Event occurs, NDPS
or the Bank, as the case may be, shall:
(a) promptly notify the Bank or NDPS, as the case may be, by telephone (to
be confirmed in writing within five (5) days of the inception of such
delay) of the occurrence of a Force Majeure Event; and
(b) describe in reasonable detail the circumstances causing the Force
Majeure Event.
31
SECTION 13. AUDITS, REGULATORY EXAMINATIONS AND COMPLIANCE
SECTION 13.1 Audits and Inspections. Upon notice, each party shall provide
----------------------
such internal auditors, external auditors, and inspectors, as the inspecting
party or any Governmental Entity having jurisdiction over NDPS or the Bank, as
applicable, may designate, with access, as requested, to the Service Locations
for the purpose of performing audits or inspections of the NDPS Services or the
Bank Services. Each party shall provide such auditors and inspectors any
assistance that they may reasonably require, at the expense of the requesting
party. If any audit by an auditor designated by a party or a Governmental
Entity or Credit Card Association, or Network Organization having jurisdiction
over the Bank or NDPS, as applicable, results in a party being notified that it
is not in compliance with applicable Laws, Association Rules or Clearing System
Rules the party shall, within the period of time specified by such auditor or
regulatory authority, use Commercially Reasonable Efforts to comply with such
audit or regulatory authority.
SECTION 14. TERM AND TERMINATION OF AGREEMENT
SECTION 14.1 Term of Agreement. Unless otherwise terminated by mutual
-----------------
agreement of the parties or by operation of the provisions set out herein, this
Agreement shall remain in full force and effect for an initial term of ten (10)
years from the date hereof and shall be automatically extended for successive
one (1) year periods on the same terms and conditions expressed herein, or as
may be amended, unless either party gives the other party written notice of
termination at least two hundred and seventy (270) days prior to the expiration
of the initial term or any extensions or renewals thereof. In the event the
Bank and NDPS are unable to reach agreement on a renewal hereof or in the event
of termination in accordance with this Section, the Bank and NDPS agree to work
together to accomplish an orderly disengagement and termination of their
relationship. Except as specifically set forth above, this Agreement may only
be terminated as a result of a Bank Default as set forth in Section 14.2 or as a
result of an NDPS Default set forth in Section 14.3 and then only in accordance
with the provisions of Section 14.4.
SECTION 14.2 Bank's Default. In the event that:
--------------
(a) the Bank defaults in the performance of any of the Bank Services
hereunder where the same Service Level is not achieved in a material
way for two consecutive months under this Agreement and a corrective
action plan has not been developed during the 30-day period after
written notice and demand for cure has been given by NDPS to the Bank
(except that such period shall be extended to the extent there shall
be in effect any event which shall be deemed a Force Majeure Event);
(b) notwithstanding any Force Majeure Event, the Bank fails to debit or
credit the Merchant Depository Accounts in accordance with Sections
4.1(c) or (d), 4.2(b) or 4.3(b) for three (3) Business Days, fails to
transmit the file to the applicable Clearing System as required by
Section 4.1(e) or 4.2(c) for
32
three (3) consecutive Business Days, fails to debit the Merchant
Deposit Accounts in accordance with Section 5.2 within three (3)
Business Days of the required date or fails to settle with Interac in
accordance with Section 4.2(d) for three (3) Business Days or fails to
ensure that the Issuing Account is adequately funded to meet the
obligations set forth in Section 4.1(c), and such default is not cured
within three (3) Business Days after written notice and demand for
cure has been given by NDPS to the Bank (unless such failure is the
result of a breach by NDPS of its obligations under this Agreement);
or
(c) the Bank is adjudged or declared bankrupt or insolvent or makes an
assignment for the benefit of creditors, or petitions or applies to
any tribunal for the appointment of a receiver, custodian, trustee, or
similar officer for it or for any part of its property, or commences
any proceedings relating to it under any reorganization, arrangement,
readjustment of debt, dissolution or liquidation Law or statute of any
jurisdiction whether now or hereafter in effect, or by any act
indicates its consent to, approval of, or acquiescence in, any such
proceeding for it or for any part of its property, or a receiver,
liquidator, assignee, custodian, trustee or similar official is
appointed for the Bank, or any of the Bank's property,
then, in any such case the Bank shall be considered to have committed a
Bank Default under this Agreement.
SECTION 14.3 NDPS' Default. In the event that:
-------------
(a) NDPS defaults in the performance of any of the NDPS Services hereunder
where the relevant Service Level is not achieved in a material way for
two consecutive months under this Agreement and a corrective action
plan has not been developed during the 30-day period after written
notice and demand for cure has been given by the Bank to NDPS
committed a Bank Default (except that such period shall be extended to
the extent there shall be in effect any event which shall be deemed a
Force Majeure Event);
(b) notwithstanding any Force Majeure Event, NDPS fails to process and
transmit or cease to be processed and transmitted information to the
Bank in accordance with Sections 4.1(a), 4.2(a) and 4.3(a) for three
(3) consecutive Business Days and such default is not cured within
three (3) Business Days after written notice and demand for cure has
been given by the Bank to NDPS (unless such failure is due to a breach
of the Bank's obligations under this Agreement); or
(c) NDPS is adjudged or declared bankrupt or insolvent or makes an
assignment for the benefit of creditors, or petitions or applies to
any tribunal for the appointment of a receiver, custodian, trustee, or
similar officer for it or for any part of its property, or commences
any proceedings relating to it under any reorganization, arrangement,
readjustment of debt,
33
dissolution or liquidation Law or statute of any jurisdiction whether
now or hereafter in effect, or by any act indicates its consent to,
approval of, or acquiescence in, any such proceeding for it or for any
part of its property, or a receiver, liquidator, assignee, custodian,
trustee or similar official is appointed for NDPS, or any of NDPS'
property,
then, in any such case, NDPS shall be considered to have committed an NDPS
Default under this Agreement.
SECTION 14.4 Termination Period. In the event this Agreement is to be
------------------
terminated as a result of a Bank Default under Section 14.2 or a NDPS Default
under Section 14.3 of this Agreement, the parties agree that the term of this
Agreement shall automatically extend on the same terms and conditions as
expressed herein for a transition period of up to two hundred and seventy (270)
days during which the parties shall work together and use their Commercially
Reasonable Efforts to cause an orderly transition of the Merchant Business.
SECTION 14.5 Termination of Use of Bank Marks. NDPS shall cease to use the
--------------------------------
Bank Marks upon commencement of the 270-day period in Section 14.4 and shall
comply with the provisions of the Trademark Licence Agreement.
SECTION 15. DESIGNATION OF RESPONSIBLE PERSONNEL
SECTION 15.1 Client Relations Representative. Each of the Bank and NDPS agrees
-------------------------------
that it will from time to time designate one or more officers or employees (the
"Client Relations Representative") who will be responsible for all
communications with the other party relating to the subject matter of this
Agreement. The initial Client Relations Representatives of the Bank and NDPS
are set forth in Schedule 15 hereto.
-----------
SECTION 16. CHANGE OF CONTROL/ASSIGNMENT
SECTION 16.1 Change of Control/Assignment.
----------------------------
(a) The obligations of the Bank under Sections 6.1 and 6.3 of this
Agreement shall terminate at the Bank's sole discretion, upon (A) an
assignment of this Agreement by NDPS to any Person other than an
Affiliate thereof without the written consent of the Bank; or (B) a
change of Control of NDPS or Global Payments; or (C) an assignment by
NDPS or an Affiliate thereof of Merchant Agreements representing all
or substantially all of the volume of Card Transactions of the
Merchant Business at that time.
(b) The rights of NDPS and its Affiliates to use the Bank's BINs and ICAs
in accordance with the provisions of this Agreement shall terminate,
at the Bank's sole discretion, upon (A) an assignment of this
Agreement by NDPS to any Person other than an Affiliate thereof
without the written consent of the Bank; (B) a change of Control of
NDPS or Global Payments; or (C) an assignment by NDPS or an Affiliate
thereof of Merchant Agreements representing all or substantially all
of the volume of
34
Card Transactions of the Merchant Business at that time, such that
NDPS, Global Payments or the Merchant Business, as the case may be, is
Controlled by a Canadian Financial Institution.
SECTION 17. MARKETING
SECTION 17.1 Annual Marketing Plan. The parties agree to enter into a mutually
---------------------
agreeable marketing plan and to review such plan on an annual basis.
SECTION 18. CREDIT POLICY
SECTION 18.1 Approval of Merchant Qualification Criteria. The Bank has
-------------------------------------------
approved NDPS' current policies with respect to merchant qualification criteria.
NDPS agrees to adhere to such merchant qualification criteria. If NDPS makes a
change to such criteria, it shall notify the Bank and the Bank shall have five
(5) Business Days to object to such new criteria. If the Bank does not object
in writing within such time period, such new criteria shall be deemed to be
accepted by the Bank. Any objections by the Bank shall be dealt with in
accordance with Section 22.
SECTION 19. TERMINALS
SECTION 19.1 Inventory Levels. NDPS will cause its Canadian Affiliate to use
----------------
Commercially Reasonable Efforts to maintain the inventory levels of terminals
for use in the Merchant Business at levels sufficient for the continuation of
the Merchant Business in the Ordinary Course.
SECTION 20. INDEMNIFICATION/LIMITATION OF LIABILITY AND PROCEDURES FOR CLAIMS
SECTION 20.1 Indemnification.
---------------
(a) Subject to the terms of this Agreement, the Bank shall indemnify NDPS
and hold NDPS harmless from any liability, loss, cost or expense,
including reasonable attorneys' fees and expenses ("Losses") suffered
by it or its Affiliates that shall result from or arise out of (i) the
breach by the Bank of this Agreement, or (ii) the Bank's violation of
applicable Laws, Association Rules and Clearing System Rules, or (iii)
the negligence or intentional wrongdoing of the Bank; provided further
that if both the Bank and NDPS are jointly sued by a third party and
both are deemed to be liable as joint tortfeasors, then the allocation
of loss between NDPS and the Bank shall be determined by the court.
(b) Subject to the terms of this Agreement, NDPS shall indemnify the Bank
and hold the Bank harmless from any Losses suffered by it or its
Affiliates that shall result from or arise out of (i) the breach by
NDPS of this Agreement, or (ii) NDPS' violation of applicable Laws,
Association Rules and Clearing System Rules, or (iii) the negligence
or intentional
35
wrongdoing of NDPS; provided further that if both the Bank and NDPS
are jointly sued by a third party and both are deemed to be liable as
joint tortfeasors, then the allocation of loss between NDPS and the
Bank shall be as determined by the court.
(c) In case any claim is made or any suit or action is commenced against
either party by a third party in respect of which indemnification may
be sought under this Section 20.1, the party to be indemnified
("Indemnitee") shall promptly give the indemnifying party
("Indemnitor") notice thereof and the Indemnitor shall be entitled to
conduct the defense thereof with counsel reasonably acceptable to the
Indemnitee or to participate in the defense thereof, at the
Indemnitor's expense. If the Indemnitor elects to conduct any such
defense, the Indemnitee shall be entitled to participate in such
defense at the Indemnitee's expense. The Indemnitor may (but need not)
conduct or participate in the defense of any such claim, suit or
action, but the Indemnitor shall promptly notify the Indemnitee if the
Indemnitor shall not desire to conduct or participate in the defense
of any such claim, suit or action. The Indemnitee may at any time
notify the Indemnitor of its intention to settle or compromise any
claim, suit or action against the Indemnitee in respect of which
payments may be sought by the Indemnitee hereunder (and the defense of
which the Indemnitor has not previously elected to conduct or
participate in), and the Indemnitee may settle or compromise any such
claim, suit or action unless the Indemnitor notifies the Indemnitee in
writing (within ten days after the Indemnitee has given the Indemnitor
written notice of its intention to settle or compromise) that the
Indemnitor reasonably objects to such settlement or compromise or
intends to conduct the defense of such claim, suit or action. Any such
settlement or compromise of or any final judgment or decree entered on
or in any claim, suit or action that the Indemnitee has agreed to or
defended or participated in the defense of in accordance herewith
shall be deemed to have been consented to by, and shall be binding
upon, the Indemnitor as fully as if the Indemnitor had assumed the
defense thereof and a final judgment or decree had been entered in
such suit or action, or with regard to such claim, by a court of
competent jurisdiction for the amount of such settlement, compromise,
judgment or decree.
(d) In case any direct claim in made in respect of which indemnification
may be sought under this Section 20.1, the Indemnitee shall promptly
give notice to the Indemnitor, which shall specify the factual basis
for the claim and the amount of such claim. The Indemnitor shall have
sixty (60) days from receipt of notice of the claim within which to
make such investigation of the claim as the Indemnitor considers
necessary or desirable. For the purpose of such investigation, the
Indemnitee shall make available to the Indemnitor reasonable
documentation to substantiate the claim, together with all such other
information as the Indemnitor may reasonably request. If both parties
agree at or before the expiration of
36
such time period (or any mutually agreed upon extension thereof) to
the validity and amount of such claim, the Indemnitor shall
immediately pay to the Indemnitee the full agreed upon amount of the
claim, but failing such agreement the matter shall be referred to the
dispute resolution procedures set out in this Agreement.
SECTION 20.2 Limitation of Liability.
-----------------------
(a) Neither NDPS nor the Bank shall be liable for failure to provide the
NDPS Services or the Bank Services, respectively, if such failure is
due to any Force Majeure Event affecting the party not performing, or
affecting one of their subcontractors provided that the party hereto
affected by such Force Majeure Event cause or condition uses
Commercially Reasonable Efforts to resume performing its obligations
hereunder as soon as practicable. Neither NDPS nor the Bank shall have
any liability for losses, expenses or damages, ordinary, special or
consequential of the other party resulting directly or indirectly from
such causes or conditions.
(b) NDPS agrees to provide the NDPS Services in a prompt and efficient
manner and to use Commercially Reasonable Efforts to comply with the
Service Levels set forth on Schedule 3; however, failure to comply
----------
with the Service Levels shall not be considered a default condition
unless the provisions of Section 14.3(a) regarding the default
conditions have been satisfied. NDPS makes no warranties or
representations regarding the NDPS Services except as specifically
stated in this Agreement. NDPS shall use due care in performing all
NDPS Services hereunder and in complying with all Association Rules,
Network Organization rules or Clearing System Rules, including, but
not limited to, those concerning the processing of Chargebacks and
Credit Losses, dispute resolutions, and arbitration. NDPS shall not be
responsible in any manner for errors or failures of any Person other
than those of NDPS, any Affiliate of NDPS or any Merchant Accounting
Processor or Independent Sales Organization designated by NDPS. THIS
WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, AND THE
BANK HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR
STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. Should
there be any failure in performance or errors or omissions, NDPS shall
use Commercially Reasonable Efforts to correct such failure in
performance or errors or omissions. Except as the result of a third
party claim subject to Section 20.1(a), in no event shall NDPS be
liable to the Bank or other third parties for special, indirect, or
consequential damages, even if NDPS has been advised of the
possibility of such damage.
(c) The Bank agrees to provide the Bank Services in a prompt and efficient
manner and to use Commercially Reasonable Efforts to comply with the
37
Service Levels set forth on Schedule 3; however, failure to comply
----------
with the Service Levels shall not be considered a default condition
unless the provisions of Section 14.2(a) regarding the default
conditions have been satisfied. The Bank makes no warranties or
representations regarding the Bank Services except as specifically
stated in this Agreement. The Bank shall use due care in performing
all the Bank Services hereunder and in complying with all Association
Rules, Network Organization rules or Clearing System Rules, including
but not limited to those concerning membership and its sponsorship of
NDPS. The Bank shall not be responsible in any manner for errors or
failures of any Person other than those of the Bank or any Affiliate
of the Bank. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER
WARRANTIES, AND NDPS HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS,
IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. Should
there be any failure in performance or errors or omissions, the Bank
shall use Commercially Reasonable Efforts to correct such failure in
performance or errors or omissions. Except as the result of a third
party claim subject to Section 20.1(b), in no event shall Bank be
liable to NDPS or any third parties for any special, indirect, or
consequential damages, even if the Bank has been advised of the
possibility of such damage.
SECTION 20.3 Recovery. If, at any time, either the Bank or NDPS has received
--------
damages from the other party and recovers funds, payments, or costs from a third
party relating to the liability in respect of which such damages were paid, the
amounts so recovered (less the costs of recovery and amounts previously paid to
the other party in respect of the Loss) shall be remitted to such other party up
to the amounts previously paid by such party.
SECTION 20.4 Notice of Default. Each party all promptly notify the other party
-----------------
if a default or event of default with respect to it has occurred hereunder.
SECTION 20.5 Notice of Litigation. Each party shall promptly give notice to
--------------------
the other party of any material claims, proceedings, disputes (including labour
disputes), changes or litigation likely or impending which may have a material
effect on the fulfilment of any of the terms hereof by it (whether or not any
such claim, change, proceeding, dispute or litigation is covered by insurance)
of which it is aware. It shall provide the other party with all information
reasonably requested, from time to time, concerning the status of such claims,
proceedings, changes, disputes, litigation or developments.
SECTION 21. REMEDIES
SECTION 21.1 Remedies of the Bank. Upon the occurrence of an NDPS Default
--------------------
under this Agreement, after attempting to resolve the matter pursuant to the
dispute
38
resolution provisions set out in this Agreement, the Bank may do any or all of
the following as the Bank, in its sole and absolute discretion, shall determine:
(a) the Bank may terminate this Agreement in accordance with the
provisions hereof, in which case all of the Bank's rights and
obligations under the Merchant Agreements shall automatically be
assigned and assumed absolutely by NDPS at the commencement of the
270-day period in Section 14.4 and NDPS shall notify Merchants that
the Bank is no longer engaged in the provision of services in
connection with the Merchant Business;
(b) the Bank may bring any proceedings in the nature of specific
performance, injunction, or other equitable remedy in any instance, it
being acknowledged that damages at Law may be an inadequate remedy for
a default of the confidentiality provisions of this Agreement
applicable to NDPS under this Agreement;
(c) subject to the limitations contained herein, the Bank may bring any
action at Law as may be necessary or advisable in order to recover
damages and costs; and/or
(d) the Bank may exercise any of its other rights and remedies provided
for hereunder or otherwise available to it, including a waiver of any
NDPS Default;
SECTION 21.2 Remedies of NDPS. Upon the occurrence of a Bank Default under
----------------
this Agreement, after attempting to resolve the matter pursuant to the dispute
resolution provisions set out in this Agreement, NDPS may do any or all of the
following as NDPS, in its sole and absolute discretion, shall determine:
(a) NDPS may terminate this Agreement in accordance with the provisions
hereof, in which case all of the rights and obligations under the
Merchant Agreements shall automatically be assigned and assumed by
NDPS at the commencement of the 270-day period in Section 14.4 and
NDPS shall notify Merchants that the Bank is no longer engaged in the
provision of services in connection with the Merchant Business;
(b) NDPS may bring any proceedings in the nature of specific performance,
injunction or other equitable remedy, it being acknowledged that
damages at Law may be an inadequate remedy for a default of the
confidentiality provisions of this Agreement applicable to the Bank
under this Agreement;
(c) subject to the limitations contained herein, NDPS may bring any action
at Law as may be necessary or advisable in order to recover damages
and costs; and/or
39
(d) NDPS may exercise any of its other rights and remedies provided for
hereunder or otherwise available to it, including a waiver of any Bank
Default.
SECTION 21.3 Non-Exclusive Remedies. The non-defaulting party may, in its sole
----------------------
discretion, exercise any right or recourse and/or proceed by any action, suit,
remedy or proceeding against the defaulting party authorized hereunder or
permitted by Law and may proceed to exercise any and all rights hereunder and no
remedy for the enforcement of the rights of the non-defaulting party shall be
exclusive of any other rights or remedies provided hereunder or at Law or in
equity or be dependent upon any such right or remedy and any one or more of such
rights or remedies may from time to time be exercised independently or in
combination. All such rights shall be subject to the limitation of liability
contained herein.
SECTION 21.4 Equitable Remedies. The defaulting party agrees that the non-
------------------
defaulting party's entitlement to seek equitable relief includes such injunction
or injunctions as may be required to prevent breaches or further breaches of any
of the provisions hereof, and specific enforcement of such provisions by an
action instituted in any court having jurisdiction.
SECTION 22. DISPUTE RESOLUTION
SECTION 22.1 Initial Dispute Resolution. If any dispute, claim, question or
--------------------------
difference (a "Dispute") arises out of or in relation to this Agreement, the
Bank or NDPS shall contact the other party's Client Relations Representative.
The parties' respective Client Relations Representatives shall meet and use
their Commercially Reasonable Efforts to negotiate with each other in good faith
and understanding of their mutual interests, to reach a just and equitable
resolution to the Dispute within ten (10) Business Days of such referral.
SECTION 22.2 Resolution by Committee. If the Dispute cannot be resolved through
-----------------------
the process set out in Section 22.1, the Dispute shall be referred by the party
who initially raised the complaint (the "Initiating Party") to a committee
comprised the Chief Executive Officer of NDPS, and a senior officer designated
by the Bank. Such committee members shall use their Commercially Reasonable
Efforts and negotiate in good faith and understanding of the parties' mutual
interests, to reach a just and equitable resolution to the Dispute within ten
(10) Business Days of such referral.
SECTION 22.3 Resolution by Joint Director Committee. If the Dispute cannot be
--------------------------------------
resolved through the process set out in Section 22.2, the Dispute shall be
referred by the Initiating Party to the Joint Director Committee. The Joint
Director Committee shall meet and use its best efforts and negotiate with each
other in good faith and understanding of the Parties mutual interests to reach a
just and equitable resolution to the Dispute within ten (10) Business Days of
such referral.
SECTION 22.4 Arbitration. If a Dispute is not resolved pursuant to Section
-----------
22.3, NDPS and the Bank agree, but shall not be obligated, within sixty (60)
days after the
40
completion of the procedures set forth in Section 22.3, as appropriate, upon
notice, to submit the Dispute to formal binding Arbitration in accordance with
Section 22.5. If at any time a party commences litigation regarding such
Dispute, no Arbitration may subsequently be commenced by the other Party
regarding such Dispute without the consent of the parties involved in the
litigation.
SECTION 22.5 Arbitration Process. If the parties agree to formal binding
-------------------
Arbitration the following procedures shall apply.
(a) The Arbitration shall be held before a panel of three (3) arbitrators
(the "Arbitration"). Any party may serve a notice on the other party
setting out a statement of dispute, controversy or claim and the facts
relating or giving rise thereto, in reasonable detail (the "Statement
of Dispute"), and the name of the arbitrator selected by it.
(b) Within thirty (30) days after receipt of such notice, the receiving
party shall respond to the notice by agreeing or commenting on the
Statement of Dispute, as the case may be, and by naming its
arbitrator.
(c) The two arbitrators named by the parties shall select the third
arbitrator within ten (10) days after agreeing on or commenting on the
Statement of Dispute.
(d) The third arbitrator will chair the Arbitration panel (the "Chair").
The Chair may, upon agreement of each of the members of the
Arbitration panel, act as sole arbitrator in respect of procedural
matters including scheduling, production of documents and giving
directions.
(e) Save as otherwise provided by this Section 22.5, the Arbitration shall
be governed by the provisions of the Arbitration Act, S.O. 1991, C.17
(the "Arbitration Act"); provided, however, that the Arbitration may
be administered by any organization agreed upon by the parties and
that the parties by agreement, may choose to be governed by the rules
of such administering organization. The parties expressly agree that
the provisions of the International Commercial Arbitration Act
(Ontario) shall not apply to any Arbitration between them. The
arbitrators may not amend or disregard any provision of this Section
22.5 without the consent of the parties.
(f) The arbitrators selected to act hereunder shall be qualified by
profession or occupation to decide the matter in dispute.
(g) Submission of Written Statements.
(i) Within fifteen (15) days of notice to the parties of the
appointment of the third arbitrator, each of the parties shall
submit written statements to the Chair setting out in
sufficient detail the facts and any contentions of Law on which
it relies, or the facts and any
41
contentions of Law on which the other party relies that it
disputes, and the relief such party claims, if any. Each party
shall have ten (10) days from the date on which the written
statements were received to reply to the written statement
submitted by the other party.
(ii) After submission of all the statements, the arbitrators may
give directions for documentary production and
disclosure/discovery of each party's case, and for further
conduct of the Arbitration bearing in mind the desirability of
having cost effective and expeditious dispute resolution on the
merits of the case. In the absence of agreement between the
parties on production and discovery procedures within thirty
(30) days of the last day for delivery of the written
statements and replies described in Section 8.05(g)(i), Rules
30, 31, 32, 34 and 35 of the Ontario Rules of Civil Procedure
regarding production and discovery will apply to the
Arbitration, excepting that the arbitrators shall exercise any
powers or fulfil any duties set out in those Rules that would
otherwise (in an action) be exercised or fulfilled by the court
or a judge.
(iii) The arbitrators may, upon application by any party, modify or
extend any time limit contained in this Section 22.5, including
any time limit in the above rules.
(h) Confidentiality. Save and except as may be necessary in the course of
the enforcement of an Arbitration award, the Arbitration process and
all Persons participating therein shall be subject to the
confidentiality provisions as set out in this Agreement. The
arbitrators and all other Persons (not already bound by the
confidentiality provisions of this Agreement) participating in the
Arbitration shall execute an undertaking to be bound by the
confidentiality provisions set out in this Agreement. For greater
certainty, the parties agree that the Arbitration shall proceed in the
event that any other Person refuses to sign a confidentiality
undertaking or agreement.
(i) Meetings and Hearings.
(i) Meetings and hearings of the Arbitration shall take place in
Toronto or in such other place as the parties shall agree upon
in writing and such meetings and hearings shall be conducted in
the English language unless otherwise agreed by such parties
and the arbitrators. Subject to the foregoing, the arbitrators
may at any time fix the date, time and place of meetings and
hearings in the Arbitration, and will give all the Parties
adequate notice thereof. Subject to any adjournments which the
arbitrators allow, the final
42
hearing will be continued on successive Business Days until it
is concluded.
(ii) All meetings and hearings will be in private unless the parties
otherwise agree.
(iii) Any party may be represented at any meetings or hearings by
legal counsel.
(iv) At the Arbitration, each party may examine and re-examine its
own witnesses and may cross-examine the other party's witness.
(j) The Decision.
(i) The arbitrators will make and send a decision in writing to the
parties within thirty (30) Business Days after the conclusion
of all hearings referred to in Section 22.5(i) unless that time
period is extended for a fixed period by the arbitrators on
written notice to each party because of illness or other cause
beyond the arbitrators' control and, unless the parties
otherwise agree, will set out reasons for decision in the
decision.
(ii) The decision of the majority of the arbitrators shall be deemed
to be the decision of the Arbitration panel. Where there is no
majority decision, the decision of the Chair shall be the
decision of the Arbitration panel.
(iii) Except as provided in the Arbitration Act and as otherwise
required by Law, the decision of the arbitrators shall be final
and binding on the parties and shall not be subject to any
appeal or review procedure, provided that the arbitrators have
followed the rules and procedures provided herein in good faith
and have proceeded in accordance with the principles of natural
justice.
SECTION 23. MISCELLANEOUS
SECTION 23.1 Amendments, Etc. No amendment or waiver of any provision of this
----------------
agreement, and no consent to any departure by the Bank or NDPS herefrom, shall
be effective unless the same shall be in writing and signed by each party sought
to be bound thereby, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 23.2 Notices. All notices required hereunder shall be delivered to the
-------
following names and addresses:
(a) If to the Bank, to: Canadian Imperial Bank of Commerce
c/o CIBC World Markets Inc.
161 Bay Street,
43
BCE Place,7th Floor
Toronto, Ontario M5J 2J8
Attn: Executive Vice President, Card Products,
Collections and Merchant Card Services
Facsimile: (416) 784-6868
with a copy to:
Canadian Imperial Bank of Commerce
Legal and Compliance Division
199 Bay Street, 15th Floor
Commerce Court West
Toronto, Ontario M5L 1A2
Attn: General Counsel
Facsimile: (416) 304-2860
and to:
Blakes, Cassels & Graydon LLP
199 Bay Street, 28th Floor
Commerce Court West
Toronto, Ontario M5L 1A9
Attn: Managing Partner
Facsimile: (416) 863-2653
(b) If to NDPS to: National Data Payment Systems, Inc.
7240 Parkway Drive, Suite 400
Hanover, Maryland 21076
Attn: General Manager
Facsimile:
(c) If to Global
Payments to: Global Payments Inc.
#2 National Data Plaza
Atlanta, Georgia 30329-2010
Attn.: Office of the Corporate Secretary
Facsimile:
The persons or addresses to which mailings or deliveries shall be made may be
changed from time to time by notice given pursuant to the provisions of this
Section 23.2. Any notice, demand or other communication given pursuant to the
provisions of this Section 23.2. shall be deemed to have been given on the date
actually delivered or five days following the date deposited in the mail,
properly addressed, postage prepaid, as the case may be.
SECTION 23.3 No Waiver; Remedies. No failure by the Bank or NDPS to exercise,
-------------------
and no delay in exercising, any right under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any right under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right. The
44
remedies provided in this Agreement are cumulative and not exclusive of any
remedies provided by Law.
SECTION 23.4 Third-Party Beneficiaries. Neither party to this Agreement
-------------------------
intends this Agreement to benefit or create any right or cause of action in or
on behalf of any Person other than the Bank and NDPS and permitted successors
and assigns.
SECTION 23.5 Assignment.
----------
(a) This Agreement shall be binding upon and inure to the successors and
permitted assigns. This Agreement and all rights, privileges, duties
and obligations of the parties hereto may not be assigned by any party
without the prior written consent of the other party; provided,
however, that no such consent shall be required (i) for the assignment
by any party of its rights and privileges hereunder to an Affiliate of
either party or (ii) for the assignment and delegation by any party of
its rights, privileges, duties and obligations hereunder to any Person
into or with which the assigning party shall merge or consolidate or
to which the assigning party shall sell all or substantially all its
assets.
(b) The consent of a party to any assignment by the other party shall not
(i) relieve that party of any of its obligations under this Agreement;
or (ii) constitute the other party's consent to further assignment.
SECTION 23.6 Governing Law, Attornment. This Agreement shall be governed by,
-------------------------
and construed in accordance with, the laws of the Province of Ontario and the
laws of Canada applicable therein.
SECTION 23.7 Entire Agreement. This Agreement embodies the entire
----------------
understanding of the parties with respect to the subject matter hereof, and
there are no further or other agreements or understandings, written or oral, in
effect between the parties relating to the subject matter of this Agreement.
SECTION 23.8 Independent Contractor. Except as expressly provided herein,
----------------------
nothing herein contained shall be construed as constituting a partnership or
joint venture between NDPS and the Bank and each party specifically disclaims
any liability for the conduct, performance of services or failure to act of the
other party. Except as specifically described in this Agreement, each party
intends that it shall be considered an independent contractor of the other for
the services performed by it under this Agreement.
SECTION 23.9 Severability. Whenever possible, each provision of this Agreement
------------
will be interpreted in such manner as to be effective and valid under applicable
Law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable Law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement. In such an event
the parties shall use good faith efforts to re-negotiate any such provision in
an effort to retain the spirit and intent of the original provision.
45
SECTION 23.10 Execution in Counterparts. This Agreement may be executed by the
-------------------------
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 23.11 Confidentiality. During the term of this Agreement and for a
---------------
period of five (5) years thereafter, the Bank, its Affiliates, and their
employees, agents and representatives shall treat the NDPS Data as confidential
and will not use or disclose such information to third parties except as
required by Law, as needed in connection with any lawsuit, claim, litigation or
other proceeding or in connection with tax or regulatory matters, and except to
the extent that such information (other than information relating to the
Merchant Business or the Assets Sold as defined in the Asset Purchase Agreement)
was otherwise known to the Bank prior to disclosure by NDPS or already in the
public domain (or subsequently entering the public domain other than as a result
of the breach of the Bank's obligations under this Section). During the term of
this Agreement and for a period of five (5) years thereafter, NDPS, its
Affiliates, and their employees, agents and representatives shall treat the Bank
Data as confidential and will not disclose such information to third parties
except as required by Law, as needed in connection with any lawsuit, claim,
litigation or other proceeding or in connection with tax or regulatory matters,
and except to the extent that such information was otherwise known to NDPS prior
to disclosure by the Bank or already in the public domain (or subsequently
entering the public domain other than as a result of the breach of NDPS'
obligations under this Section).
SECTION 23.12 Joint Announcement; Confidentiality. The Bank and NDPS agree not
-----------------------------------
to publicly disclose the transactions contemplated by this Agreement, provided,
however, that promptly after the date hereof, after prior consultation with each
other as to the substance and form of the public disclosure, the Bank and NDPS
shall make individual announcements or a joint announcement concerning the
execution of this Agreement. Any subsequent press releases or public
announcements regarding this Agreement and the processing relationship created
thereby shall be approved by both parties prior to such public disclosure or
announcement.
SECTION 23.13 Waiver of Jury Trial. The Bank and NDPS agree that any suit,
--------------------
action, or proceedings, brought or instituted by either party hereto which in
any way relates, directly or indirectly, to this Agreement or any event,
transaction, or occurrence arising out of or in any way connected with this
Agreement or the dealings of the parties with respect thereto, shall be tried
only by a court and not by a jury. THE BANK AND NDPS HEREBY EXPRESSLY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR PROCEEDING. The Bank and
NDPS acknowledge and agree that this provision is a specific and material aspect
of this Agreement between the parties and that neither party would enter into
this Agreement if this provision were not part thereof.
46
SECTION 23.14 Time of Essence. Time is of the essence of this Agreement.
---------------
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
CANADIAN IMPERIAL BANK OF COMMERCE
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
NATIONAL DATA PAYMENT SYSTEMS, INC.
By:______________________________________
Name: Suellyn P. Tornay
Title: General Counsel
The obligations of National Data Payment Systems, Inc. hereunder are hereby
guaranteed by GLOBAL PAYMENTS INC.
GLOBAL PAYMENTS INC.
By:______________________________________
Name:
Title:
47
SECTION 1. DEFINITIONS AND INTERPRETATION............................................................. 1
SECTION 1.1 Certain Defined Terms...................................................................... 1
SECTION 1.2 Headings and Table of Contents............................................................. 9
SECTION 1.3 Number and Gender.......................................................................... 9
SECTION 1.4 Performance on Business Days............................................................... 9
SECTION 1.5 References................................................................................. 9
SECTION 1.6 Section and Schedule References............................................................ 9
SECTION 2. MERCHANT AGREEMENTS........................................................................ 10
SECTION 2.1 Assigned Merchant Agreements............................................................... 10
SECTION 2.2 Further Assignment of Rights Under Merchant Agreements During the Term..................... 10
SECTION 2.3 Further Assignment of Rights Under Assigned Merchant Agreements Upon the Expiry of the Term 11
SECTION 2.4 Termination, Modification of Assigned Merchant Agreements.................................. 12
SECTION 2.5 New Three Party Merchant Agreements........................................................ 12
SECTION 2.6 Power of Attorney.......................................................................... 13
SECTION 2.7 Key Accounts............................................................................... 13
SECTION 3. SERVICES................................................................................... 14
SECTION 3.1 NDPS Services.............................................................................. 14
SECTION 3.2 Bank Services.............................................................................. 14
SECTION 3.3 Licences and Permits....................................................................... 14
SECTION 4. DEPOSIT AND SETTLEMENT PROCEDURES.......................................................... 14
SECTION 4.1 Acceptance, Delivery, and Settlement of Credit Card Transaction Records.................... 14
SECTION 4.2 Acceptance, Delivery, and Settlement of Debit Card Transaction Records.................... 16
SECTION 4.3 Acceptance, Delivery and Settlement of Merchant's Edge Card Transactions................... 17
SECTION 4.4 Amendments................................................................................. 17
SECTION 5. PAYMENTS AND ACCOUNTS; CLEARING ARRANGEMENTS............................................... 17
SECTION 5.1 General.................................................................................... 17
SECTION 5.2 Withdrawal of Account Fees from Merchant Depository Accounts............................... 18
SECTION 5.3 Settlement Accounts........................................................................ 18
SECTION 6. EXCLUSIVITY AND MARKETING.................................................................. 18
SECTION 6.1 Referral of Potential Merchants............................................................ 18
SECTION 6.2 Merchant Depository Accounts............................................................... 19
SECTION 6.3 New Products and Services.................................................................. 19
SECTION 7. CHARGE-BACKS, CREDIT LOSSES AND RISK MANAGEMENT............................................ 19
SECTION 7.1 Chargebacks and Credit Losses.............................................................. 19
SECTION 7.2 Payment for Chargebacks and Credit Losses.................................................. 20
SECTION 7.3 Foreign Interchange........................................................................ 21
SECTION 8. MEMBERSHIP IN CREDIT CARD ASSOCIATIONS AND NETWORK ORGANIZATIONS........................... 22
SECTION 8.1 VISA and Interac Membership by Bank........................................................ 22
SECTION 8.2 Compliance with VISA and Interac Requirements by NDPS...................................... 22
SECTION 8.3 Processing and Clearing Arrangements....................................................... 22
SECTION 8.4 Sponsorship................................................................................ 24
SECTION 9. SERVICE LEVELS AND AMENDMENTS.............................................................. 25
SECTION 9.1 Complaints................................................................................. 25
SECTION 9.2 Changes in Law. etc. ...................................................................... 25
SECTION 9.3 Problem Notification....................................................................... 25
SECTION 9.4 Root-Cause Analysis and Resolution......................................................... 25
SECTION 10. SERVICE LOCATIONS AND SECURITY............................................................. 26
SECTION 10.1 Rights of Access to NDPS Service Locations................................................. 26
SECTION 10.2 NDPS Service Locations..................................................................... 26
SECTION 10.3 Security Procedures........................................................................ 26
SECTION 10.4 Unauthorized Access or Copying............................................................. 26
SECTION 10.5 Data Security.............................................................................. 26
SECTION 10.6 Rights of Access to Bank Service Locations................................................. 27
SECTION 10.7 Unauthorized Access or Copying............................................................. 28
SECTION 10.8 Co-operation with Special Investigations................................................... 28
SECTION 11. REPORTS AND DATA........................................................................... 28
SECTION 11.1 NDPS Reports............................................................................... 28
SECTION 11.2 Bank Reports............................................................................... 28
SECTION 11.3 Ownership of the Bank Data................................................................. 28
SECTION 11.4 Access to the Bank Data.................................................................... 29
SECTION 11.5 Return of Bank Data........................................................................ 29
SECTION 11.6 Privacy.................................................................................... 29
SECTION 11.7 Ownership of NDPS Data..................................................................... 29
SECTION 11.8 Access to NDPS Data........................................................................ 30
SECTION 11.9 Return of NDPS Data........................................................................ 30
SECTION 11.10 Data Mining................................................................................ 30
SECTION 12. BUSINESS RECOVERY.......................................................................... 31
SECTION 12.1 Business Recovery Plan..................................................................... 31
SECTION 12.2 Force Majeure.............................................................................. 31
SECTION 13. AUDITS, REGULATORY EXAMINATIONS AND COMPLIANCE............................................. 32
SECTION 13.1 Audits and Inspections..................................................................... 32
SECTION 14. TERM AND TERMINATION OF AGREEMENT.......................................................... 32
SECTION 14.1 Term of Agreement.......................................................................... 32
SECTION 14.2 Bank's Default............................................................................. 32
SECTION 14.3 NDPS' Default.............................................................................. 33
SECTION 14.4 Termination Period......................................................................... 34
SECTION 14.5 Termination of Use of Bank Marks........................................................... 34
SECTION 15. DESIGNATION OF RESPONSIBLE PERSONNEL....................................................... 34
SECTION 15.1 Client Relations Representative............................................................ 34
SECTION 16. CHANGE OF CONTROL/ASSIGNMENT............................................................... 34
SECTION 16.1 Change of Control/Assignment............................................................... 34
SECTION 17. MARKETING.................................................................................. 35
SECTION 17.1 Annual Marketing Plan...................................................................... 35
SECTION 18. CREDIT POLICY.............................................................................. 35
SECTION 18.1 Approval of Merchant Qualification Criteria................................................ 35
SECTION 19. TERMINALS.................................................................................. 35
SECTION 19.1 Inventory Levels........................................................................... 35
SECTION 20. INDEMNIFICATION/LIMITATION OF LIABILITY AND PROCEDURES FOR CLAIMS.......................... 35
SECTION 20.1 Indemnification............................................................................ 35
SECTION 20.2 Limitation of Liability.................................................................... 37
SECTION 20.3 Recovery................................................................................... 38
SECTION 20.4 Notice of Default.......................................................................... 38
SECTION 20.5 Notice of Litigation....................................................................... 38
SECTION 21. REMEDIES................................................................................... 38
SECTION 21.1 Remedies of the Bank....................................................................... 38
SECTION 21.2 Remedies of NDPS........................................................................... 39
SECTION 21.3 Non-Exclusive Remedies..................................................................... 40
SECTION 21.4 Equitable Remedies......................................................................... 40
SECTION 22. DISPUTE RESOLUTION......................................................................... 40
SECTION 22.1 Initial Dispute Resolution................................................................. 40
SECTION 22.2 Resolution by Committee.................................................................... 40
SECTION 22.3 Resolution by Joint Director Committee..................................................... 40
SECTION 22.4 Arbitration................................................................................ 40
SECTION 22.5 Arbitration Process........................................................................ 41
SECTION 23. MISCELLANEOUS.............................................................................. 43
SECTION 23.1 Amendments, Etc. .......................................................................... 43
SECTION 23.2 Notices.................................................................................... 43
SECTION 23.3 No Waiver; Remedies........................................................................ 44
SECTION 23.4 Third-Party Beneficiaries.................................................................. 45
SECTION 23.5 Assignment................................................................................. 45
SECTION 23.6 Governing Law, Attornment.................................................................. 45
SECTION 23.7 Entire Agreement........................................................................... 45
SECTION 23.8 Independent Contractor..................................................................... 45
SECTION 23.9 Severability............................................................................... 45
SECTION 23.10 Execution in Counterparts.................................................................. 46
SECTION 23.11 Confidentiality............................................................................ 46
SECTION 23.12 Joint Announcement; Confidentiality........................................................ 46
SECTION 23.13 Waiver of Jury Trial....................................................................... 46
SECTION 23.14 Time of Essence............................................................................ 47